Samuel Alito seems to think he’s sitting on the top of the world.
Fresh from his “triumph” in obliterating a half century of protection for legal abortion, he gave a speech in Rome on July 28 aptly demonstrating his enormous self-regard, what’s sometimes called “the arrogance of power.”
His theme was religious liberty, but the questions focused on Dobbs v. Jackson Women’s Health Organization, written by Alito – the bulk of it leaked to Politico in May – and the criticism that’s poured in from around the world.
Alito mocked foreign heads of state. Of British Prime Minister Boris Johnson – who’d called the decision upholding a Mississippi law “a big step backwards” – Alito said “he paid the price.”
The idea that the imminent departure of Johnson, the “clown prince” best known for implementing Brexit, had anything to do with his Dobbs criticism suggests Alito’s arrogance verges on hubris.
Johnson is in disgrace because of what the tabloids called “boozy parties” at 10 Downing St. during the coronavirus lockdowns; both his own Conservative and the opposition Labour Party are foursquare behind abortion rights.
After all, others had harsher words, including French President Emmanuel Macron, who termed abortion “a fundamental right” being “undermined by the Supreme Court” and Canadian Prime Minister Justin Trudeau, who called the decision “horrific.” Curiously, Alito didn’t mention them; both are serving new terms.
Now that the shock of the decision is wearing off, it’s worth asking what it means – not for the political process, taking off at warp speed – but for the court itself. The answers are not encouraging.
The notorious leak was instantly blamed, by Fox News and others, on liberal law clerks seeking to embarrass the conservative justices about the radical ruling five had approved.
It may be years before the “leaker” is revealed, but we can safely conclude it came from a senior associate justice – Alito, serving since 2005, or Clarence Thomas, confirmed in 1991; they’ve been waiting a long time.
The motive was keeping five votes in line, preventing anyone from joining Chief Justice John Roberts, who preferred a more moderate approach, and filed a weak concurrence.
Alito does have something to crow about; with Dobbs, he’s effectively leading the five-member conservative majority, sidelining the chief justice – something that’s rarely happened before.
Whether the court’s image and prestige will survive is another question.
To gauge how out of keeping Alito’s coup is to the court’s traditions – which, after all, depends on the other branches to enforce its decisions – we must go back further.
On Dec. 10, 2021, the court, shortly after oral arguments in Dobbs, decided to let stand a Texas law banning abortions after six weeks; by contrast, Mississippi set a 15-week limit.
Throughout the abortion controversies, courts have always stayed laws in conflict with precedent, but not this time – even though Texas included a bizarre enforcement protocol envisioning a form of “vigilante justice.”
Texas became a preview, as clinics shut down overnight. As Dobbs was handed down, the lives of hundreds more women were turned upside down; it was all part of the plan.
When the Supreme Court announces a revolutionary new doctrine it generally does so cautiously. The notable example is Brown v. Board of Education, the Warren Court’s unanimous 1954 decision barring racial segregation in public schools in 21 Southern and Western states; the case was from Kansas.
The implementing decision for Brown waited until the following year, and even then school desegregation went on for decades.
For Justice Alito, however, change is best accomplished overnight, as the court green-lighted any abortion restrictions, no matter how draconian – anything a state legislature might enact.
Alito’s faulty reasoning, his highly selective use of history, his unseemly hectoring of fellow justices, has all prompted comment, but it’s his blind faith in his own righteousness that’s truly disturbing.
Support for, and opposition to, abortion rights has hardly varied since Roe v. Wade, and its important successor case Casey v. Planned Parenthood.
There was no new evidence, just a new five-justice lineup willing to use its power – for the first time – to eliminate a widely accepted constitutional right.
It’s an open question whether the Supreme Court “follows the election returns,” but we do know defying the voters can have fateful consequences.
Abortion will remain contested legislative ground for years, but one must ask: Will the Dobbs decision go down in history on a par with Brown, or is it more likely to resemble the Dred Scott case – which helped bring on the Civil War?
Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books, and is now researching the life and career of a U.S. Chief Justice. He welcomes comment at firstname.lastname@example.org
This article originally appeared on Portsmouth Herald: Rooks: Alito’s arrogance may cost the Supreme Court dearly