Harvard University’s ConLaw legend Laurence Tribe has read Justice Alito’s leaked draft opinion and he’s horrified by what he saw
I’ve been a fan of Laurence Tribe since long before I worked at Harvard. He’s a towering figure in American jurisprudence and, I think, one of the more astute observers in the oily morass that is the intersection of U.S. law and politics.
He has read the leaked version of what everyone now agrees is Supreme Court Justice Samuel Alito’s would-be majority opinion striking down Roe v. Wade.
Says Tribe in a May 3 op-ed in the Boston Globe:
There will be time enough to dissect the tortured reasoning reflected in the Alito draft opinion. The draft asserts that the 14th Amendment’s equal protection clause is irrelevant because the fact that bans on abortion impose burdens on women that have no parallel for men doesn’t make such bans instances of gender discrimination. The reason? Wait for it: Because any such gender discrimination theory “is squarely foreclosed by our precedents.” Quite a remark in a draft devoted to trashing precedents with abandon!
The draft then turns to the 14th Amendment’s due process clause, which prohibits states from depriving anyone of “liberty without due process of law.” That clause, the draft says, prevents states not only from using unfair procedures but also from restricting certain substantive rights without unusually strong justification. Which substantive rights? Those “guaranteed by the first eight amendments” against federal as opposed to state action, plus those the court deems sufficiently “deeply rooted.” But why those limits in particular? Not a word of the Constitution’s text supports them. Indeed, the most relevant text, the Ninth Amendment, instructs that the failure of the Constitution to “enumerate” a right cannot be taken to “deny or disparage” its existence.
Make no mistake: The body blow the court is poised to deliver to a society that aspires to breathe free will be no less brutal even if the opinion’s author is persuaded to soften its tone to avoid defections from what is bound to be an opinion speaking for a bare majority of the nine-member court, or at most a majority plus one. With or without a velvet glove, the Supreme Court is about to hit us all with an iron fist.
In other words, even if you don’t give a hoot about the abortion controversy, chances are you or someone you love will eventually be touched by the radical anti-freedom arguments now being put forth in SCOTUS’ written opinions.