“Subject to Reversal”

The leaked opinion, written by Samuel Alito, an appointee of George W. Bush (a president who lost the popular vote and entered the White House as a result of Bush v. Gore, a 5-4 stamp of approval from an ideologically split court), would overturn the landmark 1973 decision Roe v. Wade and its judicial clarifier, Planned Parenthood v. Casey (1992), both of which relied on broad constitutional interpretations of privacy and personal liberty.

“We hold that Roe and Casey must be overruled,” writes Alito in the ninety-eight-page draft. “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision including the one on which the defenders of Roe and Casey chiefly rely: the Due Process Clause and the Fourteenth Amendment.”

Paying no heed to years of precedent and considerable public support for abortion rights, Alito relies on a constrained, formalistic version of the founding document that protects only the rights “‘deeply rooted in this nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty.’” This reactionary view of rights holds under the knife not only access to abortion but other ostensibly settled liberties that broad swaths of the electorate have come to accept, embrace, and rely upon.

“Justice Alito’s draft opinion in Dobbs is a radical repudiation of the Court’s earlier libertarian precedents on abortion,” Samuel Nelson, a professor of political science at the University of Toledo, told Jacobin. “But [the decision] goes much further than that to suggest that all rights seen in earlier cases as fundamental under the Fourteenth Amendment due process clause like the right to contraception, same-sex marriage, interracial marriage, freedom from forced sterilization, and the right to educate one’s children are now subject to reversal.”

If the Supreme Court is left unchecked, it will continue to advance the interests of right-wing groups and roll back popular gains.

“Return the Issue”

In Planned Parenthood v. Casey, Alito’s conservative forebearer, Antonin Scalia, argued in dissent that it was wrong for the court to rule on the contentious issue of abortion, insisting instead that “the permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Decades later, Alito echoed this argument, writing in Dobbs that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Democratic Party leaders also invoked the voters in their response to the leaked decision. In a statement, President Joe Biden said: “If the Court does overturn Roe . . . it will fall on voters to elect pro-choice officials this November. . . . At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe.”

Putting aside the inanity of conservative justices posing as fans of electoral democracy — Scalia and Alito personally helped gut the Voting Rights Act — the voter solution to the judicial problem falls short. A clear majority of voters have long opposed overturning Roe v. Wade, yet America’s anti-majoritarian political institutions have prevented the ruling from being incorporated into law. Just this year, a measure to codify Roe was passed in the House, only to stall in the Senate in the face of the filibuster (and conservative Democrat Joe Manchin). Nor should we trust Biden or the Democratic Party, which has proven much better at using the specter of a reactionary court to bludgeon left critics than actually safeguarding abortion rights.

Disempower the Court

Instead of pushing a purely electoral solution, we should advocate a wholesale restructuring of the court and its place in American politics.

As legal scholar Samuel Moyn wrote in his testimony last year to the presidential committee on court reform:

The problem to solve is not that the Supreme Court has lost legitimacy, understood as the current trust of enough observers, but that it thwarts the democratic authority that alone justifies our political arrangements. It is one thing to insulate and protect interpreters of our Constitution and laws from certain kinds of short-term democratic control. It is quite another to cede the last word over large parts of our national political conversation — not to mention the power to edit and throw out major laws — to less accountable powers and, to add insult to injury, to pretend that doing so is either mandated by our Constitution or essential to democracy.

Moyn suggests disempowering the court by stripping the body of its jurisdiction or requiring that only a supermajority of justices could overrule an act of Congress. Another reform proposal, advocated by legal scholar Jamal Greene, would curb the “disproportionate amount of power each individual justice wields” by expanding the court to include each appellate judgeship on the federal bench.

Whatever the precise solution, after the leak of an opinion that would gut precedent upon broadly popular precedent and harm the health and bodily autonomy of millions of people, it is now glaringly obvious that the court cannot continue in its current form. We must plunder the court’s power.