Associate Justice Samuel Alito, born in 1950, writes in the Court’s opinion for Dobbs v. Jackson that “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.” Essentially, Alito confines the meaning of the Constitution to the original intent of its authors unless textual support for some additional right can be found.
Implication long has been recognized in constitutional construction. Two hundred and three years before Dobbs, Chief Justice John Marshall adopted a standard for interpreting the Constitution requiring only that the Constitution’s
Marshall defined the doctrine of implied powers, affirming that the Constitution need not be explicit about its objects which, in fact, may change and develop over time.
It is not as though Roe v. Wade and Casey v. Planned Parenthood offered no textual arguments to imply the right to an abortion. Alito himself notes that the right was grounded in the Court’s Griswold v. Connecticut decision that found a right to privacy implied by “the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” And, Dobbs (for now) explicitly has left Griswold intact.
To all appearances, Mr. Justice Alito and the Dobbs majority do not share Mr. Chief Justice Marshall’s rather more generous willingness to find things implied by the Constitution even as today’s majority claims a historical authority ask whether a right is “deeply rooted in [our] history and tradition” dating to Marshall’s time. Gazing back toward Marshall’s eighteenth and nineteenth centuries, the Dobbs majority tells us they know better. But we should acknowledge what the Dobbs majority does not: women did not enjoy equal rights to property across the U.S. until 1900, did not vote until 1920, and could not obtain credit until the 1970s. Perhaps Marshall would have asked the obvious question: Could rights unique to women possibly be “deeply rooted in [our] history and tradition”? In any event, the Dobbs majority did not ask anything like that.
Through all the noise since the Dobbs decision dropped this morning, it seems important to say that abortion is not the central subject of today’s ruling. Inwardly, I think most of us sense that something else is happening. More is at stake. Tonight, I want to suggest it’s this: when all the smoke has cleared, Dobbs will beget a legacy of ashes—a system of constitutional construction now disfigured almost beyond recognition by brute partisanship, and a polarization that hardened for decades perhaps now moving beyond its merely political phase. Dobbs augurs something new in American life.
Some inferences we can draw confidently about the Dobbs decision are deeply concerning. The majority might have narrowed the scope of the ruling, followed a line more like Roberts’s concurrence, after the leaked draft opinion disclosed how divisive the opinion would be. They didn’t narrow it or moderate it at all, even though they knew the decision would unleash protests at the Court and their homes. They even took the unprecedented step of releasing the decision on a Friday, presumably so the Secret Service could get them to secure locations a day before the decision was announced. Even with all that, Alito’s majority opinion remains practically unchanged while Thomas’s concurrence is an advertisement for the next steps against Obergefell and Griswold.
Going so far so rapidly and publishing such a crudely argued opinion that could have been written the morning after Alito was confirmed in 2005, awaiting only the day a fifth vote and a test case would arrive, the Court is telling us that now it is no-holds-barred. This Court will go full speed ahead. Of course there will be an equal and opposite reaction from those who disagree with this Court’s agenda, which always has been the logic of our polarization. But one important thing now has changed. The Court now is a player in the polarization.
This is fundamentally new. The United States Supreme Court is an active, naked partisan, and that has consequences. Yesterday it still was possible to believe that two parties could go to the Court and expect equal justice even in a controversial case. That was what happened in Casey, in Roe, in the Obamacare decision, and countless other times. We disagreed, but we accepted the Court’s decision as legitimate. Today, even a dubious faith in that cannot be justified. And, so nothing remains but brute force. Today, now as the Constitution is a public hostage to a partisan Court, it became impossible to imagine what can broker peace in our politics. Today there is no place to go where both sides will accept an outcome.
Today we know that we either are headed hopelessly apart or hurling toward one another in violent conflict. Today, war was chosen—either cold, or hot.
What comes next? The Court expands and Roe is restored? A next election will see the Court expanded again and Roe reversed again. Should Congress codify Roe in federal law? One day Republicans will control Congress, and they will reverse it. And, all this will not be confined to the federal level. Now state elections will be about whether abortion will be prohibited or permitted. Our politics and we will be consumed by this division.
And all this will be because we forgot something else Marshall said in 1819—”we must never forget that it is a Constitution we are expounding.” A constitution, a bit of political magic that takes people who disagree about fundamental, important things and gives them mechanisms with which to construct peace. A constitution is no mere law. It is an instrument of reconciliation that thrives for as long as we believe the magic.
The Court forgot that today. In this moment, I cannot think of how we can get the magic back.