AMAC Exclusive – By Seamus Brennan
As the nation awaits in the coming weeks the release of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization—the controversial Mississippi abortion case for which a draft of Justice Samuel Alito’s 5-4 majority opinion was leaked earlier this month—speculation continues to mount that Chief Justice John Roberts is now working to undermine the Alito majority and its overturning of Roe v. Wade, the 1973 decision that resulted in an absolutist ban on abortion restrictions.
That Roberts is trying to convince one of the justices now thought to be in the Alito majority to join himself and the three dissenting liberal justices in rejecting Alito’s opinion was suggested in a May 18th article, “Creeping Taneyism at the High Court: Can Roberts Alter Alito?” Arguing that Roberts is consumed with keeping in place his two-decade-old strategy of handing unexpected victories to the Democratic Party, the media, and militant left in order to protect the nation and the Court from what he sees as disruptions to social “stability” and the dangers of “polarized” politics, the article compares him to the Court’s fifth Chief Justice, Roger Taney, who sought in 1857 to ease the nation and the Court through the dangerous shoals of disunion over slavery with an ill-considered Dred Scott decision that ended only in stoking the fires of division. In tracing in detail the current Chief Justice’s remarkable history of media and Court maneuvers in service of vague concepts like “fluidity in the middle,” the article lays out Roberts’ shaky rationale for justifying his own abandonment in key cases of the constitutionalist principles on which he was first nominated and appointed to the Court in 2005.
But while Roberts may well be striving mightily behind the scenes to move votes—something he has done in an earlier abortion case (in which he successfully brought over to his side one of the more newly appointed justices)—the challenge he faces in the Mississippi case is daunting, since all three of the Trump-appointed justices (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) expressed during the December oral arguments considerable doubt about the legal rationale for keeping the Supreme Court, rather than state legislatures, as the ultimate arbiter of abortion law and practices.
Thus, should Roberts fail and the Alito majority hold together, the consequences could go well beyond ending the practice of abortion-on-demand. In fact, the Mississippi case could very well be the impetus for a much-needed rejection of Roberts’ public relations-oriented jurisprudence and serve as a renewal of the American legal system, which in recent years and decades has fallen prey to judges legislating from the bench on behalf of trendy and culturally extremist views of the progressive left.
If the leaked Alito draft accurately reflects the Court’s final decision, here are four ways it could rekindle America’s legal landscape and save the Supreme Court.
- First, overturning Roe would stand as a firm repudiation of the left’s intimidation tactics and demonstrate that the Court is capable of resisting mob pressure from radical activists. Following days of illegal protests staged outside the homes of the justices, it became clear that the left’s desired strategy was to bully any on-the-fence justices who signed on to Alito’s majority into changing course—a strategy they surely hoped would appeal to Roberts’ deliberately stated view that the Court must prioritize “legitimacy” and “credibility” while avoiding any appearance of “partisan divide.” If the 5-4 majority to overrule Roe remains in place, however, it would show beyond any reasonable doubt not only that Roberts’ view has no staying power among his conservative colleagues, but also that mob rule will not have the final word. In this sense, releasing a decision that overrules Roe would serve as a historic moment for everyone who cares about the rule of law and the integrity of one of our nation’s most sacred institutions.
- Second, the Alito opinion has the capacity to show that stare decisis, the legal doctrine that compels judges to adhere strictly to precedent, is not the sacrosanct be-all and end-all of American law that many would like it to be. Just as the High Court rightly overturned erroneous precedents like Dred Scott v. Sanford and Plessy v. Ferguson, the Court should not be compelled to uphold decisions like Roe, which is similarly acknowledged to be an intellectually shoddy and egregiously decided decision with no grounding whatsoever in the text of the Constitution. As Justice Clarence Thomas has said, “Stare decisis is not an inexorable command.” Rather, “the Constitution itself, the written document, is the ultimate stare decisis.” It’s well past time that the American people, the media, and the Court itself come to adopt this view as their own.
- Third, the Mississippi case could go a long way in restoring America’s law schools, which are quickly descending into progressive indoctrination centers with little regard for the American constitutional order. As law professor Charles Rounds once wrote, the American legal curriculum has become bombarded with courses that emphasize “bad sociology, not law”—or what lawyer George Leef described as “ideological window dressing”—and encourage activism and political advocacy rather than rigorous study of the law itself. But Alito’s exceptionally well-reasoned opinion could succeed in challenging Roberts’ status as an institutionalist consensus builder and reassert the dominance of the written law over Roberts’ obsession with the Court’s (and his own) approval in the left-wing media.
- Finally, if the leaked Alito opinion remains in place, it could expose Roberts as a having a pedestrian legal mind in the mold of Harry Blackmun (who authored the Roe opinion) and Roger Taney (who similarly stymied the written law in his Dred Scott opinion)—and prove once and for all that a public relations-oriented approach to constitutional jurisprudence harms rather than helps the Court’s institutional authority. Though Roberts likely doesn’t realize it, it is ironically his own attempt to avert political criticism that makes him the most politically calculative member of the Court and does the most damage to the Court as a legal institution bound by the law, as opposed to a political institution answerable to changing partisan winds. However, a correctly decided ruling in the Mississippi case would serve as a vital first step in reversing this dangerous pattern.
The real danger to the Court, as the May 18th article stated, is not the appearance of a so-called “partisan divide” among the justices, but rather “the sort of damage [Roberts] would cause with those he has long taken for granted if he were to succeed in overturning the Alito majority.” If Roberts were to be successful in altering Alito’s majority and preserving Roe, the piece continues, the “Court would be permanently diminished” in the eyes of “normal Americans.” But if Roberts fails, a scenario that at this point seems likely, it will be taken as evidence that decades of hard work and persistence among constitutional conservatives have paid off, that the rule of law has not yet been defeated, and that, above all, that the Court is worth fighting for.
With the Supreme Court on the brink of issuing this landmark ruling, most conservative commentators and pundits have been rightly focusing on the impending victory of the pro-life movement. But the pro-life movement and unborn children would not be the only beneficiaries. In the end, the Alito opinion could not only hand the pro-life movement its most significant legal victory since Roe v. Wade was decided nearly half a century ago and save untold numbers of unborn children, but it could also save the authority of the Court, the sanctity of Constitution, and the preservation of American jurisprudence itself.
For these reasons, if the Alito majority remains untainted, the American people will have much to celebrate.