Experience – Transparency – Professionalism – Tenacity

Alitos Draft Dobbs Opinion is Dishonest

Two salient points appear in Alito’s draft decision on abortion in Dobbs v. Jackson
Women’s Health Organization: (1) its arguments were each analyzed and rejected by the Court
in Planned Parenthood of SE. Pennsylvania v. Casey;1 and (2) it is intellectually dishonest.
Each of the arguments made by Alito were made and rejected in Casey and Roe. Alito
says nothing new. Nothing has changed except the composition of the Court.
Casey and Roe disclose the intellectual dishonesty, and danger, of Dobbs. The core
intellectual dishonesty is that Dobbs in effect adopts a strict constructionist approach to the
14th Amendment’s due process protection of liberty without justifying that adoption. That strict
constructionist approach differs from Roe and Casey which used Justice Harlan’s approach of a
“reasoned judgment.”2 The Casey Court quoted Justice Harlan’s words:
If the supplying of content to this Constitutional concept [of liberty] has
of necessity been a rational process, it certainly has not been one where
judges have felt free to roam where unguided speculation might take
them. The balance of which I speak is the balance struck by this country,
having regard to what history teaches are the traditions from which it
developed as well as the traditions from which it broke. That tradition is a
living thing.3
The majority of the Casey court rejected the idea that “the Bill of Rights []or the specific
practices of States at the time of the adoption of the Fourteenth Amendment mark[] the outer
limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” The
majority of the Casey Court specifically rejected the idea that judicial discretion could be
constrained by limiting the protections of the 14th Amendment to the understandings of
history. The Court quoted Justice Frankfurter in Rochin v. California:
To believe that this judicial exercise of judgment could be avoided by
freezing “due process of law” at some fixed stage of time or thought is to
suggest that the most important aspect of constitutional adjudication is a
function for inanimate machines and not for judges4
Presciently, in 2010, Mr. Justice Stevens described the contrast between the dynamic
approach (used by the Roe and Casey courts) and the history and traditions approach (used by
Alito in Dobbs):
1 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) 2 Planned Parenthood of Southeastern Pennsylvania, 505 U.S. at 849 3 Planned Parenthood of Southeastern Pennsylvania, 505 U.S. at 850, quoting Justice Harlan in, Poe v. Ullman, 367
U.S. 497, 542, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961) (dissenting from dismissal on jurisdictional grounds). 4 Planned Parenthood of Southeastern Pennsylvania, 505 U.S. at 850, quoting Rochin v. California, 342 U.S. 165,
171–172, 72 S. Ct. 205, 96 L. Ed. 183 (1952).
More fundamentally, a rigid historical methodology [as used by Alito in
Dobbs] is unfaithful to the Constitution’s command. For if it were really
the case that the Fourteenth Amendment’s guarantee of liberty
embraces only those rights “so rooted in our history, tradition, and
practice as to require special protection” … then the guarantee would
serve little function, save to ratify those rights that state actors have
already been according the most extensive protection…. That approach is
unfaithful to the expansive principle Americans laid down when they
ratified the Fourteenth Amendment and to the level of generality they
chose when they crafted its language; it promises an objectivity it cannot
deliver and masks the value judgments that pervade any analysis of what
customs, defined in what manner, are sufficiently “‘rooted’”; it
countenances the most revolting injustices in the name of continuity, for
we must never forget that not only slavery but also the subjugation of
women and other rank forms of discrimination are part of our history;
and it effaces this Court’s distinctive role in saying what the law is, leaving
the development and safekeeping of liberty to majoritarian political
processes. It is judicial abdication in the guise of judicial modesty.
No, the liberty safeguarded by the Fourteenth Amendment is not merely
preservative in nature but rather is a “dynamic concept.” …
Its dynamism provides a central means through which the Framers
enabled the Constitution to “endure for ages to come”… a central
example of how they “wisely spoke in general language and left to
succeeding generations the task of applying that language to the
unceasingly changing environment in which they would live,” …. “The
task of giving concrete meaning to the term ‘liberty,’“ I have elsewhere
explained at some length, “was a part of the work assigned to future
generations.” … The judge who would outsource the interpretation of
“liberty” to historical sentiment has turned his back on a task the
Constitution assigned to him and drained the document of its intended
5 McDonald v. City of Chicago, Ill., 561 U.S. 742, 875–77, 130 S. Ct. 3020, 3098–99, 177 L. Ed. 2d 894 (2010) (in
dissent). A critical reader might complain that both McDonald (incorporating the right to keep and bear arms) and
Timbs v. Indiana, 139 S. Ct. 682, 686–87, 203 L. Ed. 2d 11 (2019) (incorporating the excessive fines clause of the 8th
amendment) used the “dee[p] root[s] in [our] history and tradition” approach. But both found rights, neither
subtracted rights. The fact that there may be two analytic approaches to finding rights does not mean that one of
the two must be in error. Rights found to have deep roots, may well also be rights that are part of our dynamic
“living tradition.”
Roe and Casey fit squarely in the tradition of interpreting the protection of “liberty” in
the 14th Amendment through a dynamic “reasoned judgement” in light of the our history and
living traditions.
Alito overturns Roe and Casey because they do not establish, and Alito says he cannot
find, the protected right (in his lexicon, a right to an abortion but truly a right to personal bodily
autonomy) “deeply rooted in [our] history and tradition.”6 In Alito’s opinion, the test to
determine whether a right is protected by the 14th Amendment’s protection of “liberty” is
whether it is “deeply rooted in [our] history and tradition.” But that is exactly the test that the
Casey Court refused to adopt.
Where did Alito get that test? He got it from Washington v. Glucksberg7 in which the
majority opinion in dicta limited substantive due process rights to “fundamental rights found to
be deeply rooted in our legal tradition.” It is intellectually dishonest to override the
requirements of stare decisis and overturn Roe and Casey based on that language of Glucksberg
for at least three reasons.
First, it is dishonest to chide the authors of Roe (decided in 1973), and of Casey,
(decided in 1992) for failing to follow the dicta of a case years later in 1997.
Second, the standard articulated in Glucksberg is dicta. It is dicta because the outcome
of the case did not depend on which standard is applied. Both the majority and the concurring
opinions reached the same conclusion. Whether assisted suicide is deeply rooted in our history
and tradition or, alternatively, properly within the protection of liberty under a reasoned
judgment approach taking into account our living tradition, made no difference to the outcome.
All agreed it was neither. The dicta of Glucksberg cannot be said to overturn Casey and Roe.
Third, Dobbs dishonestly overturns Casey and Roe. By a kind of sleight of hand, Alito
claims that Roe’s reading of history was egregiously wrong and therefore subject to being
overruled (since egregious error is one of the elements needed to overcome the weight of stare
decisis) because it does not meet the Glucksberg standard.8 But, aside from not being
egregiously wrong on the history, the Casey and Roe courts did not treat history as the sine
qua non of a protected liberty interest but merely as one of the elements of a reasoned
judgment taking into account our living traditions. The Casey and Roe courts did not believe
that 14th Amendment liberty interest rights were, in the metaphor of Justice Frankfurter, frozen
at the time of its adoption.
The overruling of Roe and Casey is not about a different reading of history9
, but, instead,
a different standard for finding rights protected by the 14th Amendment. In overruling Roe and
Casey, Alito overthrows the standard they used. Yet he wastes no words explaining why that
6 Dobbs at p. 11. 7
Washington v. Glucksberg, 521 U.S. 702, 722, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772 (1997) 8 See, Dobbs, pp 15-30. 9 Although those readings do differ at least as to emphasis – both seem to agree that pre-quickening abortion was
legal at common law.
standard, one which had been benefitted by the favorable imprimatur of many famous
Supreme Court justices, is overturned.
Instead, Alito spends many pages establishing the unsurprising proposition that the
white men who voted in favor of the 14th amendment did not contemplate that they might be
giving women (who did not have the right to vote) autonomy over their own bodies. The
conclusion that women were granted no such protected right is foregone as soon as one
decides that the rights protected by the 14th Amendment are only rights recognized by history
and not rights recognized by reasoned judgment.
Alito overturns Roe without addressing or, in fact, identifying an error. Instead, he
simply adopts a different rule of constitutional interpretation, fails to explain why his rule of
interpretation is even permitted in light of stare decisis, let alone why the rule used by Casey
and Roe is egregiously wrong, and then applies it to obtain the result the world knows that Alito
wanted before the case was argued.
Because he does not identify the change in rule of constitutional interpretation he
adopts, he dishonestly overturns a decision based on a proper application of the old rule of
interpretation. There was nothing egregiously wrong about Roe’s or Casey’s application of the
reasoned judgment approach to abortion. Alito instead rejects the reasoned judgment
approach and would replace it by the “deeply rooted” in history approach. But the Casey court
rejected the “deeply rooted” in history approach and Alito makes no attempt to explain why
stare decisis does not require that he accept that decision and apply the reasoned judgment
The protection of the right to an abortion is a product of a view of the constitution as a
living document. A living document is not Alito’s view. If he is a judge constrained by precedent
and the rule of law, he must apply that view of a living constitution to the problem of abortion.
If he were instead a legal philosopher unconstrained by the rule of law, then he his permitted
to ignore the rule of precedent. As a judge, ignoring precedent, he undermines both his court’s
integrity and the rule of law.
Edmond J. Ford
Ford, McDonald & Borden, P.A.
10 Pleasant Street
Suite 400
Portsmouth, NH 03801
[email protected]
May 8, 2022