When early this week, a draft opinion by Samuel Alito overruling Roe vs. Wade was revealed, I was not surprised. You didn't have to really be that much of a "court watcher" to know how this was going to go: for years, Republicans have told us they want to stack the courts with people who would overrule Roe vs. Wade. They were telling us directly, not dog-whistling, not slyly signaling -- boldly declaring their intentions.
But being inoculated from the surprise did nothing to mitigate the rage. That's in large part because this particular draft as written by Alito seems specifically calibrated to provoke rage. It is such a work of legislation masquerading as legal thinking, so much the very thing "originalist" conservatives decry, that it boils the blood.
Alito goes on for nearly 100 pages, but the summary of what he wrote is basically: I did a word search on the Constitution and "abortion" isn't in there. This sort of disingenuous approach to law is par for the course from Republican-appointed judges these days. I'd point out that if legal analysis was really this simple, there's seemingly no need for all the education lawyers and judges get. But then, they don't necessarily get it these days, which is why more and more Republican-nomiated judges are rated as "Not Qualified" by the American Bar Association.
The truth, of course, is that Alito and other extremist members of the Supreme Court simply stop reading the law at the point that suits them -- that point being 1787. They'll endlessly dive into the background and thinking of the framers who wrote the original document... but somehow, the 17 times we've amended the Constitution since then, the intentions of those lawmakers, just don't seem to be as important.
The 14th Amendment was about abolishing slavery, yes. But it was written knowing better even than we understand today exactly what slavery meant. When those lawmakers wrote about what it meant to "deprive any person of life, liberty, or property," they knew exactly what kind of deprivations were routine for slaves. Slaves were separated from their families, not permitted to have families, forced to bear offspring, and far, far more... "indignities" is a woefully insufficient word. Can anyone be said to truly have their "liberty" in the face of that? If they don't have privacy, or self-determination? The "word search method" of Constitutional law eschews even the simplest kind of thought exercise, because if you did so, you'd get an obvious, different answer.
And what's especially galling here, a disingenuous rot at the heart of this claim to prize "the words of the Founders," is that you have to explicitly ignore some of their words to get there. Those first 10 Amendments that were there from the very beginning? You never hear conservatives talking about the 9th. (Or frankly... any other than the 1st, 2nd, and 10th.) "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That's stating in very specific terms that you can't "word search" the Constitution -- just because it's not specifically in there doesn't mean it's not in there.
When the real ruling in Dobbs v. Jackson Women's Health Organization comes down in a few weeks, I'm sure that dissenting justices will say all of that far more articulately than I. (And with a more enlightened legal foundation. These are the things you do when you actually care about "showing your work.") Sadly, the words will be a dissent.
"Word search" jurisprudence will go on to strip more and more rights away in the years ahead. Popular opinion won't limit how far they go; leaving Roe and Casey in place is favored by around 70% of the U.S. population -- even in red states -- but they're striking it down anyway with a fervor and glee that oozes "what are you gonna do about it?"
The only way to stop these draconian judges is to stop voting for the Republican candidates who put them on the bench. Don't wait for them to come for the particular law that you think will impact you personally. For one thing, they will eventually. Moreover, this law, right now, affects you personally.
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