“Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.”
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“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”
“Constitutionally speaking, the Court does not have the hard authority of the presidency or Congress. It cannot deploy the military or cut off funding for a program. It can order others to take actions, but these orders only hold force if the other branches and state governments believe they have to follow them. The Court’s power depends on its legitimacy — on a widespread belief, among both citizens and politicians, that following its orders is the right and necessary thing to do.”
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“Justice Samuel Alito’s leaked draft opinion that would overrule Roe v. Wade, if issued, could be yet another significant blow to Court legitimacy. The issue is not just that a majority of Americans will disagree with the ruling, though they almost certainly will. It’s that the process that led to this outcome has repeatedly exposed the Court as a vessel for politics by other means.
In that context, a reversal of what is probably the most contentious modern Supreme Court ruling — which established a 50-year precedent with longstanding majority support — will hit differently than previous controversial Court rulings. The damage could be severe and lasting, worse even than nakedly political decisions like Bush v. Gore.
While it may be tempting to cheer the collapse of the Court’s legitimacy given its track record, the Worcester case should give us some pause. In the American system, for better or for worse, the Court is supposed to serve as the final arbiter of political disagreements. If it lacks the legitimacy to play that role, it sets the stage for a constitutional crisis — especially if former President Donald Trump runs again in 2024.”
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“since 2016, Republicans have taken a series of steps that have made it hard for anyone to see the Court as standing above politics.
When Justice Antonin Scalia died in February 2016, GOP Senate Majority Leader Mitch McConnell infamously refused to even schedule hearings for Obama’s replacement nominee, current Attorney General Merrick Garland, until after the 2016 election. McConnell’s argument was that no justice should be appointed in an election year, but the rationale was clearly political: Garland is a moderate liberal and would have tipped the Court from a 5-4 conservative majority to a 5-4 liberal one.
Then Donald Trump won the 2016 election despite losing the popular vote and proceeded to remake the Court along McConnell’s preferred lines.
First, he appointed staunch conservative Neil Gorsuch to the Court instead of Garland — preserving a 5-4 conservative majority on the court. Then longtime Republican operative Brett Kavanaugh was confirmed amid a furious battle over Christine Blasey Ford’s allegations that Kavanaugh sexually assaulted her, one of the most bitter and polarizing hearings in Supreme Court history.
And when Justice Ginsburg died in September 2020, McConnell and Trump rushed Amy Coney Barrett onto the Court before the 2020 vote — giving conservatives a 6-3 advantage, and revealing the alleged principle behind the Garland blockade to be a partisan fiction. (McConnell’s attempt to square this circle, citing an alleged norm against the Senate confirming nominations from opposite-party presidents in election years, was risible.)”
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“the Court itself hasn’t helped matters. Since the Trump appointments, the Court’s jurisprudence has lurched hard right. Chief Justice John Roberts, seemingly the sole conservative concerned with the Court’s above-politics reputation, can no longer join four liberals to rein in his colleagues’ policy ambitions.
This is the context in which Alito’s Roe draft opinion emerged. Much of the concerns about the opinion’s effect on legitimacy have focused on the leak of the draft — on how it makes the Supreme Court look like any other Washington institution. But this is inside baseball: The much bigger effect on Court legitimacy is more likely to come from the ruling itself, if it in fact becomes law.”
“The anti-abortion movement has also focused on building a pipeline of judicial nominees through organizations like the Federalist Society. The left, meanwhile, has focused on shifting party opinion on related issues like contraception coverage and the Hyde Amendment, which prohibits government funds from being used to pay for abortion except in the case of rape, incest, or endangering the mother’s life, while treating Roe as a largely settled matter.
Now, all those years of work by anti-abortion activists seem to be paying off. If the Supreme Court overturns Roe v. Wade, as it appears set to do based on the draft opinion that leaked..,it will toss out nearly 50 years of jurisprudence along with it.”
“whether or not someone has actually invoked their right to counsel is, to some degree, subjective, though it can have far-reaching consequences in a defendant’s case.”
“On Wednesday, the New York Court of Appeals ruled that the congressional map New York Democrats enacted back in February was a partisan gerrymander that violated the state constitution and tossed it to the curb. The decision was a huge blow to Democrats, who until recently looked like they had gained enough seats nationally in redistricting to almost eliminate the Republican bias in the House of Representatives. But with the invalidation of New York’s map, as well as Florida’s recent passage of a congressional map that heavily favors the GOP,1 the takeaways from the 2021-22 redistricting cycle are no longer so straightforward.
That’s because much of Democrats’ national redistricting advantage rested on their gerrymander in New York.”
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“There are still congressional maps that could get struck down in court, like Florida’s. And there are still states that have yet to finalize a map — like, oh yeah, New York!
In its decision, the New York Court of Appeals endorsed the idea that a neutral special master — essentially, an expert in drawing political maps — should draw New York’s next congressional map. That would presumably lead to a relatively fair map, but the details and exact partisan breakdown are, of course, still a mystery; Democrats could still gain seats from New York’s map when all is said and done (just not as many as from their gerrymander).”
“After President Joe Biden nominated Ketanji Brown Jackson for the Supreme Court, Reason’s Damon Root noted that she “has shown admirable judgment in criminal justice cases.” One especially telling example is Jackson’s handling of people charged with possessing or sharing child pornography, who face absurdly long sentences under federal law even when they have never committed any offenses involving contact with a victim.
Questioning those sentences is politically perilous, since people tend to erroneously assume that anyone who looks at such pictures is a current or future child molester. Yet as a judge on the U.S. District Court for the District of Columbia, Jackson frequently imposed sentences below the range recommended by federal guidelines. Sen. Josh Hawley (R–Mo.), a former Missouri attorney general, thinks those decisions reveal an “alarming pattern” of “sentencing leniency for sex criminals,” whom he equates with “child predators.”
Hawley has no idea what he is talking about. His mindlessly punitive attitude elides crucial distinctions and ignores the fact that many federal judges agree with Jackson that the recommended sentences for possessing child pornography are frequently excessive.
Jackson, who is currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was a member of the U.S. Sentencing Commission (USSC) from 2009 to 2014. During that time, Jackson recognized that people caught with child pornography do not necessarily pose a threat to public safety. Hawley cites a hearing at which Jackson said she had mistakenly “assumed that child pornography offenders are pedophiles” and was “trying to understand this category of nonpedophiles who obtain child pornography.”
While Hawley implies that Jackson’s interest in this subject is clearly crazy, it is consistent with research that underlines the importance of a distinction that Hawley ignores in his haste to score cheap political points. As Karl Hanson, a senior research scientist at Public Safety Canada and a leading expert on sex offenders, told me more than a decade ago, “there does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending.”
Recidivism research supports that observation. A 2021 USSC study, for example, tracked 1,093 nonproduction child pornography offenders who were released from prison in 2005. Three years later, it found, 3.3 percent had been arrested for a “non-contact sex offense” (which would include possession of child pornography). Just 1.3 percent had been arrested for a “contact sex offense.” Even allowing for crimes that were not reported, these finding suggests this category of sex offenders is far less dangerous than people commonly imagine.
Hawley is completely uninterested in such findings. He even faults Jackson for referring to “less-serious child pornography offender[s],” a complaint that bizarrely implies there are no differences among such defendants that might be relevant to the punishment they receive. As far as lawmakers like Hawley are concerned, there is no such thing as an excessively severe sentence for possessing child pornography.”
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“In fiscal year 2019, the USSC found, 59 percent of nonproduction offenders received sentences below the guideline range, compared to less than 16 percent in FY 2005. “There had been a steady increase in the percentage of sentences imposed below the applicable guideline range in non-production child pornography cases,” the USSC notes, “which indicate[s] that courts increasingly believed the sentencing scheme for such offenders was overly severe.”
In other words, the downward departures that Hawley presents as aberrant, marking Jackson as especially soft on “sex criminals,” are actually typical.”
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“Hawley’s case against Jackson is based entirely on the unquestioned assumption that the current sentencing scheme is just and that any downward deviations from it must be inappropriately lenient. He cites one defendant, for example, who “had more than 600 images and videos and posted many on a public blog.” The guidelines recommended a sentence of 151 to 188 months, but “Judge Jackson settled on 60 months, the lowest possible sentence allowed by law.”
While a sentence of 12 to 15 years might be appropriate (or even too lenient) for someone who sexually abuses a child, Hawley thinks it’s obviously just for a defendant whose crimes consisted of nothing more than collecting and sharing images of such abuse. He likewise thinks it’s obvious that a five-year sentence for such conduct is akin to a slap on the wrist. Many people, including many federal judges, disagree.
Hawley’s sense of justice does not even comport with the views of average citizens who serve on federal juries. In a 2014 case involving a defendant who was caught with 1,500 child porn images on his computer, for example, James Gwin, a federal judge in Cleveland, asked the jurors what they thought an appropriate sentence would be. On average, they recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), and the term indicated by federal sentencing guidelines (27 years).
Taking a cue from the jury, Gwin sentenced the defendant to five years, the minimum required by statute, which was one-quarter the term that prosecutors wanted but still four times longer than the jurors deemed fair. No doubt Hawley would consider five years insufficient in that case as well. But he does not bother to defend that position, except by lazily and ignorantly classifying all such defendants as “sex criminals” who are “preying on children.”
As a federal judge in Iowa, Mark W. Bennett likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. “Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,” Bennett told The Marshall Project’s Eli Hager in 2015, “every time—even here, in one of the most conservative parts of Iowa, where we haven’t had a ‘not guilty’ verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney.””
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“”Protecting the most vulnerable shouldn’t be up for debate,” Hawley says. “Sending child predators to jail shouldn’t be controversial.” But the issue is not whether “child predators” should go to jail. It is whether defendants who are not “child predators” should be imprisoned for, say, 14 months (as the jurors in the Ohio case recommended), five years (the mandatory minimum in that case), or, as Hawley presumably would prefer, the 27 years recommended by federal sentencing guidelines.”
“It’s incredibly rare for a draft opinion to be leaked like this and this leak has been roundly condemned.”
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“If the opinion is issued as-is or somewhere near it, constitutional protection of abortion access will be null and the decision of whether or not to permit abortion will return to the states.
Thirteen states have enacted laws saying that abortion is immediately illegal should Roe be overturned (Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming). Others retain (currently unenforced) pre-Roe bans that will be triggered again.
Overall, some 23 states “have laws that could be used to restrict the legal status of abortion,” according to the Guttmacher Institute. This includes nine states with “unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe’s absence.”
Meanwhile, other states have passed laws guaranteeing abortion access in Roe’s absence, and others are poised to do so. According to the Guttmacher Institute, “16 states and the District of Columbia have laws that protect the right to abortion.””
“Three Republicans voted to confirm Jackson: Romney, and Sens. Lisa Murkowski of Alaska and Susan Collins of Maine. Of those three, only Romney voted last year against confirming Jackson to the U.S. Court of Appeals for the District of Columbia Circuit, often considered the second-highest court in the land.
After meeting with Jackson last month and reviewing her confirmation hearings, Romney changed his mind, saying he had “concluded that she is a well-qualified jurist and a person of honor.” It was an implicit rejection of the narrative that his fellow Republicans had pushed about the first Black woman to be put forward for the Supreme Court, who many of them portrayed during her confirmation hearings as a liberal extremist who was soft on crime.
“While I do not expect to agree with every decision she may make on the court, I believe that she more than meets the standard of excellence and integrity,” Romney said in a statement this week.
He is, at the moment, seemingly in the middle of everything. He just brokered a bipartisan deal to salvage a $10 billion coronavirus response package that had stalled amid partisan haggling, this time fully paid for by previously allocated federal funds. He is part of bipartisan efforts to rewrite the Electoral Count Act of 1887, which President Donald Trump sought to manipulate to keep himself in office after losing the 2020 election.
And Romney has appealed to Democrats to work with him on legislation to support children and families, now that the expanded child tax credit has expired and President Joe Biden’s Build Back Better safety net legislation is moribund. All of that is coming after he helped deliver what might be the crowning achievement of Biden’s first year in office: the $1 trillion infrastructure bill.
As Democrats have struggled to pull together 50 senators to advance social safety net legislation, they may find that Romney is a more persuadable bet for that pivotal 50th vote than Sen. Joe Manchin of West Virginia, the Democrat who has stymied their efforts so far.
“Whenever there is a bipartisan effort to tackle an issue, its success is nearly guaranteed,” Romney said in a recent interview. “Bipartisan efforts pass. What does not pass in a 50-50 Senate is legislation crafted entirely by one party.””