An initial response to reading the Opinions
June 24, 2022
When the news came down earlier today I was doing some outside activities with my son. I finished those up and then, because weather-wise it is a glorious day in Omaha, I strung up my hammock and decided to forego what else I had planned and read the opinions. I've long had a habit of reading SCOTUS opinions I'm interested in. In fact, I think Roe was the first one I ever read, back in Junior High. And I wanted to read the opinions themselves before reading any articles or analyses. My initial thoughts, then.
Alito's majority opinion does not seem to be exactly the same as the draft opinion but similar. Will be interesting to read analyses of what changed. It appears to respond to some of the criticisms that arose after the leak.
I didn't realize till just now that the phrases “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty" used as criteria are actually from a decision written by Ruth Bader Ginsburg. On another issue of course.
As is usually the case with reading something Alito writes (which is rarely the opinion everyone on his side signs onto), there is a coherency to the arguments but a sense that there's something wrong with the perspective, that his starting point is just off and misses something essential. The same follows here, and is drawn out by the dissenters. The key issue of women's equality and liberties and how that embeds within our tradition is pretty much missed completely by Alito. Again, as if he missed the whole point of the issue and what the precedents were attempting to do. (See far below for some general thoughts on abortion).
Thomas's concurrence is frightening. He's always been this radical minority voice, but I begin to dread that he now can sway other votes.
Both the Court’s opinion and the dissent display a relent-
less freedom from doubt on the legal issue that I cannot
share. I am not sure, for example, that a ban on terminat-
ing a pregnancy from the moment of conception must be
treated the same under the Constitution as a ban after fif-
teen weeks. A thoughtful Member of this Court once coun-
seled that the difficulty of a question “admonishes us to ob-
serve the wise limitations on our function and to confine
ourselves to deciding only what is necessary to the disposi-
tion of the immediate case.” Whitehouse v. Illinois Central
R. Co., 349 U. S. 366, 372–373 (1955) (Frankfurter, J., for
the Court). I would decide the question we granted review
to answer—whether the previously recognized abortion
right bars all abortion restrictions prior to viability, such
that a ban on abortions after fifteen weeks of pregnancy is
necessarily unlawful. The answer to that question is no,
and there is no need to go further to decide this case.
The majority would allow States to ban abor-
tion from conception onward because it does not think
forced childbirth at all implicates a woman’s rights to equal-
ity and freedom. Today’s Court, that is, does not think
there is anything of constitutional significance attached to
a woman’s control of her body and the path of her life. Roe
and Casey thought that one-sided view misguided. In some
sense, that is the difference in a nutshell between our prec-
edents and the majority opinion. The constitutional regime
we have lived in for the last 50 years recognized competing
interests, and sought a balance between them. The consti-
tutional regime we enter today erases the woman’s interest
and recognizes only the State’s (or the Federal Govern-
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