The reaction to Justice Samuel Alito’s draft opinion has created a great stir, of course. Abortion is probably the most contentious issue since the issue of slavery, which led to the Civil War. Every SCOTUS decision on abortion has been important; one based on his opinion would be unprecedented in reversing a precedent identifying a Constitutional right, to abortion no less. The expected reversal of a 50-year ruling coincident with a change in the political composition of the Court is calling into question both its judicial independence and its political legitimacy. For many people, the reaction depends on whether they like or dislike the decision or its consequences.
From a legal perspective, the answer to any question about the Court’s legitimacy depends upon the cogency of its opinions, and the considerations which constitute them. It requires a reading of Blackmun’s opinion in Roe v. Wade and Alito’s draft opinion. Blackmun’s is a disgrace; Alito’s in Dobbs is a greater one. Alito’s lacks cogency in its flawed arguments and religious bias--not the bases of an opinion capable of legitimacy.
Alito’s first paragraph shows both deficiencies.
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.
First, Alito’s division of those holding opinions on abortion is fundamentally flawed. Instead of dividing different beliefs on the same moral principle—when life begins—, Alito divides different groups defined by different kinds of principles. The three groups are not mutually exclusive. A person can believe what “some believe,” “others feel,” and “still others think.” Indeed, many people are conflicted because they have more than one of these beliefs. Alito’s muddled division dishonestly misrepresents the complexity of the controversy over abortion—not the basis of an opinion capable of legitimacy.
Second, Alito’s selection of one belief, his Catholic belief, among many about when life begins is gravely flawed by its biased exclusion of different beliefs held by others. Many Christians, and most or all Muslims believe life begins at quickening; some Christians and all Jews believe that it begins at breach. Alito’s exclusion of others’ beliefs reflects the Catholic presumption of doctrinal superiority or, on the flip side, Catholic contempt for non-Catholic beliefs—not the basis of an opinion capable of legitimacy.
If this much can be said about the first paragraph of Alito’s draft opinion, obviously, much more can be said about the defects and deformities in its remaining 68 pages. One thing I believe certain: if anything like this opinion prevails, the legitimacy of SCOTUS will be impaired for at least a generation, until it is reversed or overcome by federal legislation or Constitutional amendment. Until then, it will be a target of criticism and scorn. Alito’s denigration of Blackmun’s opinion will be nothing compared to the disparagement of his.
Answers offered to the question of the Court’s legitimacy are focusing on the role of religion both in the issue of abortion—I have argued that abortion is a First Amendment right—and on the thinking of the justices in the majority who will decide Dobbs. Coming into focus, not for the first time, is that Catholicism is antithetical to democracy. The conservative Catholic judges, who have been expanding and extending religious rights have been doing so at the expense of the Constitution’s structuring of a democratic civic society. Now, in an invulnerable majority, they are working to turn American pluralistic democracy into a Christian theocracy embraced by Catholic and evangelical Christian churches—churches recently notorious for patriarchy, the subordination of women, and the sexual molestation of men, women, and children.
Shocking to me is the widespread and energetic efforts of these and other Americans to degrade themselves and debase the ideals of this country, all the while projecting their abominations onto others. Justice Thomas’s hypocritical sneers at those who he says cannot accept decisions contrary to their liking perfectly express his long-festering detestation of decisions contrary to his liking and now his ill-concealed jubilation at his chance at revenge by reversing precedents which he detests.
There is no way back, at least not soon. This SCOTUS erosion of democracy—many of its decisions are impairing free and fair elections—culminates decades of concentrated effort by the religious right to repeal the modern, secular, pluralistic world. Abortions is just one battle in its war. Its tactics and tone have affected—infected may be a better word—at least two generations. Many on the Left and on the Right, whatever their political or religious persuasions, have grown up rigid ideologically and hostile politically and personally to those with whom they differ. For example, Woke and Racism are opposite sides of the same coin of intolerance of and insult toward each other. The loss of respect and decency, the foundations of democracy, cannot be recovered if they were never part of one's upbringing. What remains is bigotry and barbarism, now authorized and empowered by a conservative Catholic Supreme Court.
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