The recent leak of a draft Supreme Court opinion relating to abortion is making the news cycle churn, along with tens of millions of stomachs.
The opinion, which would reportedly overturn Roe v. Wade, was written by conservative justice Samuel Alito. The fallout from the leak was immediate: liberal Democratic US Senators proclaimed the need to codify abortion into federal law, Chief Justice John Roberts lost his shit over the leak, Biden said things but took no significant action, and vast protests erupted across the country.
Missing from the uproar, of course, is the broader ramifications included in the leaked draft. Some supporters of abortion rights called Alito “extreme”, while others called him “deceptive”. Yet none seemed to talk about the most problematic aspect of the document, which is the extent to which Alito, charged by the state with upholding the Constitution, is deciding the case based on personal opinion. Which means that the leaked draft’s most dangerous aspect is the fact that a judicial body charged with upholding the Constitution as its only job is no longer required to do that in any case it rules on.
The Supreme Court doesn’t have the best record of interpreting the Constitution correctly. Some cases are decided correctly and well-remembered for transforming society, such as Brown v Board. Others are decided correctly and largely forgotten about, due to their insularity (Burdick v United States). But the Supreme Court has screwed up quite a few times over the years: it declared that the Constitution doesn’t recognize certain people as even being people (Dred Scott v Sanford), that constitutionally designated rights can be ignored by individual states as they see fit (Betts v Brady), and that the Constitution allocates human rights to non-humans (Citizens United v FEC). And no entity has declared that the US Supreme Court got something wrong more individual times than the court itself, which has overruled itself 232 times since 1810 (more than once a year, on average).
Yet usually, when the court has a ruling– even an errant one– the focus is on what the Constitution says or does. One such example is Vernonia School District v Acton; the court ruled that mandatory drug testing of student athletes was deemed necessary to ensure a safe environment, something the students at the school had an 8th amendment right to, given the precedent set by Brown v. Plata. The court was still wrong, since the ruling implied a presumption of guilt by the student that was unreasonable, but at least it tried to rule in keeping with the Constitution. By contrast, Alito attacks abortion on page 32 of his opinion as unconstitutional by proclaiming that “the Constitution does not confer such a right” due to the “critical moral question posed by abortion”; in essence, abortion isn’t constitutionally protected because Alito personally believes it’s wrong.
Four other justices on the court signed on to this opinion disregarding the Constitution without hesitation. Which means the era where the Court ruled exclusively on the Constitution, is officially at an end.