Victory for the Rule of Law- posted by Nancy Webster Kaya

 

Leaked Opinion in Dobbs v Jackson Women’s Health Organization by Justice Samuel Alito/ Opinion by Joyce Luster/ Published May 9, 2022

 

Assuming that the leaked opinion in Dobbs v. Jackson Women’s Health Organization by Justice Samuel Alito commands a majority of the Supreme Court in something like its current form, it has important implications for constitutional jurisprudence beyond Roe v. Wade.

The opinion begins not by parsing the Court’s many past cases on abortion, but instead by asking how a right to abortion can be located in the Constitution. Alito roots his judgment in the words of fundamental law rather than in the Court’s own precedents, privileging the original meaning of our binding charter instead of the Court’s past glosses.

Alito responds to arguments that have tried to ground Roe v. Wade in almost every conceivable provision of the Constitution, from the First to the Ninth Amendments, and shows why they are unsound. He considers that one might base the putative right to abortion on the word “liberty” in the Fourteenth Amendment but holds that that guarantee protects only “rights deeply rooted in the nation’s history and tradition.” Abortion obviously fails that test.

Beyond any particular case, however, Alito’s opinion provides a victory for the rule of law and popular sovereignty. A Court that builds only on its own work rather than periodically revisiting the people’s edifice for politics and liberty becomes an elite oligarchy, not a faithful agent of the citizenry.