gracchusdixit

The words, “Equal Justice Under Law,” are engraved on the architrave surmounting the majestic portico of the Supreme Court of the United States.  They express not only the purpose of the court but the intent of the Constitution the court was created to uphold.  The fact remains that “justice” is by no means a straightforward idea.  From the poets and philosophers of ancient Greece to the legal and political scholars of the present day, countless thinkers have for centuries debated its meaning and how it should be applied in law and life.  You might therefore imagine that the Supreme Court of the United States would, at the very least, consider the question of justice in deciding the cases that come before it.   If that is what you imagined, however, you would be wrong.  

Scarcely two weeks ago, a “draft opinion” authored by Justice Samuel Alito, one of the court’s arch-conservatives, was leaked to the press.  It concerns a case called Dobbs v. Jackson Women’s Health Organization, filed by the State of Mississippi, seeking to overturn Roe v. Wade, the 1973 decision that for the first time in our history confirmed the constitutional right of women to make their own reproductive decisions.  Nowhere in the tortuous 98 pages of Samuel Alito’s tirade does the word “justice” appear.  Nowhere does “Justice” Alito even acknowledge that some measure of justice may be owed to the millions of women whose lives will be upended if Roe is overturned.

Any decent person who takes the time to read Alito’s “draft opinion” will find the experience embarrassing, shameful, and dispiriting.  Embarrassing, because it is difficult to fathom how such a cruel, narrow-minded, and intellectually dishonest man could ever have been confirmed as a Justice of the Supreme Court.  Shameful, because Alito’s cruelty is not only unapologetic but gleeful.  And dispiriting, because his “draft opinion” seems likely to become law.

Alito doesn’t bother to cloak his purpose.  Indeed, it takes him only five pages to get to his brutal point:    

We hold that Roe and Casey must be overruled.  The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.

Everything in this pronouncement is false on the facts, illogical, and designed to deceive.  That the Constitution “makes no reference to abortion” is an irrelevance.  The Constitution “makes no reference” to a host of private and personal matters, including sex and gender, marriage and divorce, conception and contraception—not to mention the concept of “fetal personhood,” the most preposterous of the innumerable fictions peddled by the anti-abortion movement.  There is a host of less private things the Constitution also says nothing about, like airplanes and highways, television and iPhones, electricity and the internal combustion engine.  If we were to follow Alito’s “reasoning” to its absurd result, states like Mississippi would be free to ban, not only abortion and contraception, but skate boards, sitcoms, and any other aspect of the modern age their luddite legislators might object to, on the grounds that the Constitution “makes no reference” to such things.

Furthermore, Alito’s dismissive characterization of the rights protected by the 14th Amendment is flatly untrue.  In Planned Parenthood v. Casey, theSupreme Court ruled—explicitly—that such rights include “personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing, and education.”  Alito may disagree with Casey, but he cannot simply wish it away.  And yet, that is precisely what conservatives like Alito are forever doing:  wishing away legal decisions that do not agree with their prejudices.  

Consider the Holy Grail of the political right, which is the fiction that the Second Amendment enshrines an “individual right” to own guns.  In reality, the Second Amendment does no such thing.  When the amendment was adopted, the American Republic was fragile, surrounded by enemies, and had no standing army.   Its only means of defense was a “well regulated militia” empowered to “keep and bear arms” for that purpose and no other.  Which is precisely what the Second Amendment says.  To think that it says anything else is a complete fabrication.

Which makes it all the more ironic that Samuel Alito’s anti-abortion argument relies  so heavily on the proposition that the only valid interpretation of the Constitution is one “deeply rooted in this nation’s history and tradition”.  Alito seems too dim to realize that “history” and “tradition” are subjective terms, susceptible to many meanings.   One person’s traditions are not necessarily another’s, and no account of the history is ever definitive.  Were the “founding fathers” noble-minded patriots or selfish slave-owners?  Did the United States need to drop atomic bombs on Japan to hasten the end of the Second World War or was that decision a cold act of self-interested realpolitik?   The only truthful answer to such questions is:  It depends on your point of view.

Nor are History and tradition fixed entities.  They exist in time, and evolve over time.  There were times in our lamentable history when loathsome traditions like slavery, Jim Crow, the political and economic suppression of women, child labor, and a thousand other barbarisms were taken for granted.  Most decent and honorable people today deplore such barbarisms, but if Samuel Alito had his way, they would still be on the books, sanctified by “history and tradition”.  

Alito’s zeal to make this conception the litmus test of constitutional interpretation borders on the absurd.  He quotes abhorrent “authorities” from the 17th century about the “quickening” of a fetus in a woman’s womb, as if a benighted age in which “witches” were burned and millions were slaughtered in religious wars had anything useful to say to those of us living today.  He invokes anti-abortion statutes from the 19th and early 20th centuries, enacted by many of the same repressive states that are trying to ban abortion again, as if they were praise-worthy illustrations of “history and tradition” rather than shameful examples of cultural and moral backwardness.

As if all that weren’t enough, Alito contradicts himself by advocating the abandonment of stare decisis, the principle that previous judicial decisions should be given deference and, absent compelling reasons, should be allowed to stand.  He apparently doesn’t realize that stare decisis is the legal equivalent of “history and tradition”.  If he wants us to abide by an 1877 statute that banned abortion in South Dakota, he cannot logically also urge us to jettison Roe.  Yet that is precisely what he does.  

The reason for all this vicious nonsense, of course, is that Samuel Alito doesn’t give a fig about logic or consistency, fairness or justice.  His only purpose is to justify his own prejudices and to cloak them in a fustian shroud of legal legerdemain, hoping that no one will notice the shabbiness of his real intent.

Nowhere is this more obvious than when he declares that Mississippi’s legislature “made a series of factual findings” in passing its abortion ban, and then goes on to quote the pseudo-scientific nonsense of Mississippi’s statute as if it were anything but utter rubbish; without blushing, he adopts the phrase, “unborn human being,” as if there were such a thing.  At the same time, he fastidiously avoids words that have actual biological meanings, like sperm and ovum,  zygote and blastocyst, “embryo” and “fetus”.  This is because Alito’s purpose is to gin up sympathy for the organism occupying a woman’s womb rather than considering what might be a just outcome for the women herself.

When all is said and done, Samuel Alito is not a constitutional or legal thinker.  He is a “judge” only in the Old Testament sense, a religious zealot whose sole concerns are punishment and damnation.  His “opinions” are drawn directly from the dogma of the Roman Catholic Church to which he belongs and more particularly from the medieval theologian, Thomas Aquinas, still considered by his church to be the ultimate authority on matters philosophical.  

Although Alito is an intellectual pygmy next to Aquinas, the thinking of the two men is marred by the same fatal flaw.  It was Bertrand Russell who identified that flaw when he summed up Aquinas this way:

He is not engaged in an enquiry, the result of which it is impossible to know in advance.  Before he begins to philosophise, he already knows the truth; it is declared in the Catholic faith.  If he can find apparently rational arguments for some parts of the faith, so much the better; if he cannot, he need only fall back on revelation.  The finding of arguments for a conclusion given in advance is not philosophy, but special pleading.

Russell’s words apply to Samuel Alito no less than to Thomas Aquinas.  “The finding of arguments for a conclusion given in advance” is not jurisprudence, and it certainly isn’t justice.  It is a vicious form of prejudice.