Albert Alschuler Poses Questions for the Supreme Court Justices Poised to Overrule Roe

Some Questions for the Alito Five

On the assumption that five Supreme Court Justices—Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—are prepared to overrule Roe v. Wade and join an opinion resembling Justice Alito’s draft in Dobbs v. Jackson Women’s Health Org. (“the draft”), we have some questions.

1. Timing.

When a decision you consider misguided has lasted nearly fifty years and your Court has rejected at least six prior requests to overrule it, is this the right time to scrap it? You’ve probably noticed that American politics are polarized, that heartbreaking violence is now a regular thing, and that a lengthy and continuing pandemic has put all of us on edge. The abortion issue is, as the draft observes, “bitterly divisive.” Is this a good time to pour gasoline on the flames, erect barricades around your Court, and hunker down? Or are questions like these irrelevant because, as the draft proclaims: “[W]e cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work”?

2. A Court Divided by Party.

When the Justices who decided Brown v. Board overruled Plessy v. Ferguson, a 58-year-old decision upholding racial segregation, they understood that their ruling would generate outrage and resistance. In circulating the first draft of his opinion, Chief Justice Earl Warren wrote that it was “prepared on the theory that [it] should be short, readable by the lay public, non-rhetorical, unemotional and, above all, non-accusatory.” With some nudging, every member of the Court joined Warren’s opinion and declined to write separately.

Read more at Justia Verdict

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