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Alito Versus Law And Science

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Our legal system only works if we have impartial judges whose decisions are based on facts. Samuel Alito is not an impartial jurist. He doesn’t care about facts. In this, he is only the most obvious of the six right-wing members of SCOTUS.

Law

Roe v. Wade, discussed here, stood as precedent for 50 years, until it was thrown out by the right-wingers. Each of the people who signed onto the opinion, and John Robert, who didn’t, swore that stare decisis is a crucial aspect of judicial legitimacy, and recognized that Roe was binding precedent. That was a deception.

One important goal of stare decisis is to create certainty and stability in social relations. The legal term is reliance. We don’t overturn precedent without good cause. We might overturn a precedent because it is doing more harm than good. Thus, reasonable people see the wisdom in overturning Plessy v. Ferguson, which upheld Jim Crow laws.

I do not think Roe v. Wade was wrongly decided, but even if I did, that’s not enough. If overturning it causes more harm than leaving it in place, it should stand. Otherwise, we are not a government of laws, but a government by the feelings of five members of SCOTUS.

In Dobbs v. Jackson Women’s Health Organization, Alito rips that principle to shreds in pursuit of his partisan ideology. He writes:

in this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

His justification for all these points is callous and absurd, but especially his rejection of reliance. In § III.E he explains that there are three kinds of reliance.

1. Areas of law requiring precise advance planning. This, of course, is not applicable.

2. Areas of concrete reliance. That’s not present in this case. The claims that women rely on Roe are “novel” and “intangible”, and it would be wrong to consider them.

That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.

That leads to impassioned arguments, he says, so who’s to say whether there’s any actual reliance. So what if there’s a hideous impact is on society and in particular on the lives of women? Those things are irrelevant in the austere legal world, lit by the incandescent power of the Judicial Intellect Of Sam Alito.

3. This ruling won’t affect other cases. He must think we’re stupid.

Science

Alito uses the term “unborn human being” ten times in his opinion. Usually courts use neutral language, or the language of the parties. His choice of words is a signal about his beliefs. He thinks a human child, a separate person, is living in the womb, just waiting to be born. That’s not true. It’s a religious belief.

My thanks to commenter c-i-v-i-l for linking us to a peer-reviewed paper in Natural Sciences, Pseudo-embryology and personhood: How embryological pseudoscience helps structure the American abortion debate. The paper was written by a noted US embryologist, Scott Gilbert. I have the pleasure of knowing Professor Gilbert. The paper includes a review and explanation of six of the different views scientists hold regarding the onset of personhood.

1. Fertilization: the formation of a unique genome.

2. Gastrulation: the point of cellular division of the fertilized ovum at which the embryo can no longer form identical twins, but can only form one unique human person.

3. Emergence of the human EEG pattern pattern: the cerebral cortex begins to function.

4. Viability: the stage at which the embryo can survive outside the womb.

5. Birth.

In addition to these, Gilbert notes a sixth position taken by many scientists, that personhood is not a scientific category. The differences he describes between the state of the embryo at the five stages he lists show the problem.

Gilbert’s paper disposes of the notion that there is scientific consensus on the issue of personhood. He goes much farther in his analysis, explaining that the anti-abortion mob is creating a pseudo-science to justify their religious zealotry. He likens it to Eugenics which caused tremendous damage; it also seems like creationism.

He describes three myths that buttress this pseudo-science. One is th myth of the valiant sperm fighting its way on a perilous journey, racing to the waiting ovum, piercing it and filling it with new life. This is a story of masculine prowess: the male is the active force and the female is passive. It’s the myth of the journey of the hero as seen in the work of Joseph Campbell and others. He writes:

The female oviduct is not a passive racetrack, and the egg and its cumulus are active in attracting sperm and exciting them to swim faster. Although the sperm needs its propulsion to pass through the cumulus cells and extracellular covering that surround the egg, it does not bore through, drill through, or penetrate the egg, itself. Rather, when the sperm finds the egg, it lies next to it, spooning, and then the membranes of the sperm and egg melt together, and the two become one.

This is a beautiful and powerful picture: two human bodies working together to achieve new life. Alito deals with the beauty and complexity Gilbert outlines in his paper by claiming judges can’t solve the problem. His solution is to hand the decision to state governments. He knows full well that many of them don’t care about reality any more than he does, and that they will take away the liberty of the majority. He doesn’t care.

Partisan hackery

It’s easy to see that Alito is a partisan hack by reading his opinions and checking his voting record. In the face of his record, he refused to recuse from the Trump immunity case and the January 6 criminal case on the hilarious grounds that no one could think him anything but the soul of impartiality.

Journalist Lauren Windsor recorded Alito at a recent private event. The video reinforces the perception that he is a partisan, not an impartial judge. He has a Manichean view of US politics: the struggle between the forces of godliness and the secular left. In a rambling response, he describes it as a battle one side or the other must win, though possibly there are ways to live together in peace, but some matters cannot be compromised.

But there wasn’t a battle until a tiny minority funded by billionaires used the state to impose their religion on an unwilling majority. The majority was forced to defend its liberty. Alito thinks this is fine.

His wife, Martha-Ann, is a Fox News Grandma fulminating about the outrage of the day, and stewing in grudges for decades. This recording,  also captured by Windsor, is awesome. As Joan Walsh puts it in The Nation, she lets her freak flag fly.

Alito is a crank. Martha-Ann is a crank. They crank together.

What can we do?

1. Please read the Gilbert paper I linked. If nothing else, it will shore up your faith in intelligent observation of our shared reality.

2. Call Senator Durbin’s Judiciary Committee and ask them what they’re doing to protect us from biased judges. It isn’t just Alito and the other SCOTUS rogues. Trump put dozens of right-wing cranks on the bench, including Aileen Cannon, Matthew Kacsmaryk, and James Ho.

Roe v. Wade

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Roe v. Wade (1973)  is at the heart of Jamal Greene’s book How Rights Went Wrong, my next book. It marks the apogee of the trajectory of the Warren Court, though it was decided after he retired. The opinion was handed down during my last year in law school, and I must have read it then, but I hadn’t read since. The name, if not the reasoning, became an icon for our understanding of our rights. And then, the current SCOTUS majority reminded us that they’re in charge of our liberty, and not some ancient version of SCOTUS from 50 years ago.

In this post, I’ll discuss the holding and reasoning of the Roe majority, written by Harry Blackmun.  I’ll skip over the preliminary holdings, including standing, justiciability, and procedural issues.

Introductory context

Blackmun begins his analysis by stating that the Court is aware that the abortion is “sensitive” and “emotional”, and that people hold “deep and seemingly absolute convictions” the subject. People’s views on the subject are influenced by a wide variety of factors, ranging from religious doctrine to worries about population. But he has a job to do.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.

Facts and legal claims

Jane Roe was a single woman residing in Texas. Texas law made abortion a crime with exceptions “… for an abortion by. ‘medical advice for the purpose of saving the life of the mother.’ “. At the time she filed Roe was pregnant and wanted a safe abortion in Texas because she couldn’t afford to go to a state where it would be legal.

Roe claimed that the Texas statutes were unconstitutionally vague, and “… that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”

Context and interests

Blackmun begins with a history of abortion laws from ancient times to the present “for such insight as that history may afford us”. He doesn’t mention the witch-hunter Matthew Hale. He then describes the past and current positions of three professional associations, the American Medical Association, the American Bar Association, and the American Public Health Association. These lay out the general legal and health situation at that time and the recommendations of those bodies.

Blackmun says there are three justifications for criminalizing abortion.

a) to discourage illicit behavior. Texas doesn’t make this argument.

b) to protect the pregnant woman. At the time of adoption of criminal punishment the procedures were dangerous, with a high mortality rate. With modern procedures, that is no longer the case, and abortions, at least in the early months, are safer than normal childbirth. Blackmun notes that there remain important health and safety issues that are properly the function of states. The interest of the states in protecting the woman’s health and safety increase as the pregnancy progresses.

c) to protect pre-natal life. Texas argues that “Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.” Blackmun says that “as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”

The Roe side argues that there is no reason to think that any of these statutes were intended to protect the fetus. There is no legislative history to support that view, and what there is discusses the health of the pregnant woman. The same is true for the case law.

These are the interests at stake.

The right to privacy

Blackmun says that there is a line of SCOTUS cases in which the Court recognized a zone of privacy for individuals, and lists cases in which provisions of the Bill of Rights were applied to create individual rights to be let alone, including Griswold v. Connecticut, the birth control case. He doesn’t repeat the analysis of Griswold, merely pointing out its roots in the 9th Amendment.

Blackmun holds that the a woman’s decision to get an abortion is within this zone of protection. He recites some of the burdens that Texas imposes on women, and the damage it does to them and their families. But that’s not the end of the discussion.

He’s already said that Texas has an interest in protecting the health of the woman, and in maintaining medical standards, and in protecting potential life. The right to privacy is not absolute. There are other interests that must be protected, and at some point the interests of that the state rightfully claims become dominant. He says this is the general position taken by most of the courts that have ruled on the issue.

Fetal personhood

In Section IX, Blackmun takes on the question of whether a fetus is a “person” within the meaning of the 14th Amendment. Blackmun recites every use of the word person in the Constitution. He says that none of them can be read to include “prenatal application.” Other courts agree. But that doesn’t fully exhaust the interests asserted by Texas.

Texas claims life begins at conception. Blackmun says that doctors and scientists can’t answer that question and gives examples Therefore the judiciary certainly can’t.

Blackmun says that to override a woman’s right to privacy Texas must show a compelling state interest.

We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, … and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

This leads to the three part rule of Roe. In the first trimester, the dominant interest is that of the woman, and the state cannot show a compelling interest in her decision or in the means of effectuation. In the second trimester, the risk increases, justifying reasonable regulation related to the life and health of the woman.

After viability, roughly at the end of the second trimester, the interest of the state in protection of the fetus becomes dominant, and reasonable regulation to protect the fetus is justified, so long as it doesn’t impact the life or health of the mother.

Discussion

1. In Dobbs v. Jackson Women’s Heath Organization,  Alito  claims that Roe is badly reasoned. Alito doesn’t like the history, maybe because it doesn’t mention any witch-hunters. He thinks Blackmun was required to show there were prior legal case recognizing a Constitutional right to abortion. He doesn’t like the three part regime. And he doesn’t like the idea of the zone of privacy at all.

Alito states that there is no basis in the Constitution for a right to an abortion. He says that whatever the privacy interests are, the states can evaluate them without regard to the Constitution. He flatly denies the existence of a constitutionally protected zone of privacy. He thinks the only limit on governmental intrusion is something he calls the principles of ordered liberty, which he doesn’t define, or something deeply rooted in our history and traditions. Alito says no new constitutional rights can ever exist, and we’re locked into a regime dominated by slavers and those willing to compromise with slavers; a regime where dominant males said women were second class citizens, despite the Reconstruction Amendments. Alito thinks federal and state governments can intrude into any area of private life with few exceptions.

Alito’s views are at the very beginning of his interminable opinion, and there’s a syllabus, a brief synopsis, at the beginning of the link. See for yourself.

Query: which opinion makes better sense of the world we live in?

2. After we go through Greene’s book we’ll take another look at this case.

The Supreme Court Has Always Been Terrible

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Index to posts in this series

The Civil Rights Cases

The Slaughterhouse Cases and US v. Cruikshank are preludes to the final gutting of the Reconstruction Amendments in The Civil Rights Cases, decided in 1883. Earlier bills aimed at insuring the full citizenship of Black people were struck down by the Supreme Court but Congress kept trying, passing another Civil Rights Act in 1875.

The new law required all businesses to serve people equally regardless of race or prior condition of servitude. The Civil Rights Cases are a consolidated group of cases brought by Black people to enforce their right stay in a hotel, to visit a theater, to sit in the dress circle of a theater, and for Black women to ride in the Ladies Car on a railroad. The Court struck down the law on the same grounds as cases linked above. I have two further observations.

1. Writing for the majority, Joseph Bradley writes:

We have … felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court, and we are bound to exercise it according to the best lights we have.

Bradley doesn’t say who threw the “responsibility of an independent judgment” onto him. He uses the passive voice to hide it. We know it can only come from the minds of the members of the Court. He also knew he could get away with this outrageous assertion of power. By 1883 Congress was controlled by the Democrats, then the part of White Supremacy, so they didn’t care. The presidency, then at a low ebb in power, was irrelevant.

The lives and liberty of Black people didn’t count, and nothing was left of the Reconstruction Amendments.

2. To add insult to injury Bradley offered this argument.

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.

The Supreme Court had struck down that “beneficent legislation”. Bradley knew about the Colfax Massacre. He knew the army had been sent in to stop murderous groups like the KKK. He know about lynchings, rapes, robberies, and mob violence. He knew that states refused to protect Black citizens, and that Congress was trying to fill the gap. He knew full well the intent of the Reconstruction Amendments was to enable the federal government to protect Black Citizens. He just didn’t care.

Bradley would fit right in with the MAGA SCOTUS of today.

Our Current SCOTUS Doesn’t Care About The Consequences of Its Decisions

Three examples will suffice.

Gun Case. Here’s a section of the oral argument in Macdonald v. City of Chicago.

… BREYER: You’re saying they can have — no matter what, that the City just can’t have guns even if they’re saving hundreds of lives — they can’t ban them.

….

… SCALIA: There’s a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?

Miranda is not analogous, and the intellectual fraud Scalia knew it. The statistics the odious Scalia is talking about are real dead and injured people. Like this child. Scalia doesn’t care about these murders or what guns and gun violence do to our society. He thinks his views of the intent of the Founders are more important. He thinks the Founders would sacrifice thousands of dead people for the right to waltz around with an AR-15.

The OSHA Rule. Here’s a snippet from oral argument on the OSHA Covid vaxx or test rule.

… ROBERTS: No, it’s not so much that OSHA has less power. It’s that the idea that this is specific to particular agencies really doesn’t hold much water when you’re picking them off one by –one by one.

I think maybe it should be analyzed more broadly as this is, in effect, an effort to cover the waterfront. I’m not saying it’s a bad thing.

But I don’t know that we should try to find, okay, what specific thing can we find to say, oh, this is covered by OSHA? What specific thing can we find to say that this is covered by the hospitals? What specific thing can we find to say, oh, no, we’re doing this because this is a federal contractor?

It seems to me that the more and more mandates that pop up in different agencies, it’s fair –I wonder if it’s not fair for us to look at the Court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why don’t the –why doesn’t this be the primary responsibility of the states?

Roberts is saying it’s suspicious that Biden (and Trump before him) marshaled all government agencies to deal with the pandemic. He’s going to decide how the government can respond, no matter what the statutes say, and as Elizabeth Prelogar, the Solicitor General responds, he could just read the statute. But you won’t see Roberts taking any blame for the people who died, or spent days or weeks in intensive care, or got long Covid, because of his decision. For him, that’s just statistics. He doesn’t care.

Abortion. In Dobbs v. Jackson Whole Women’s Health Alito says SCOTUS doesn’t have to follow precedent, meaning Roe v. Wade, in part because no one can prove they rely on it. Reliance requires proof that one is planning in advance based on the precedent. No one plans to get pregnant then get an abortion. Presto, no reliance. There’s more, and it just gets more cruel.

Alito ignores the actual effect of Roe v. Wade: that women and their families can control their own lives, that their lives are valuable. The abstract idea that states should have a say in women’s lives is more important than an unknown number of deaths, thousands of dangerous pregnancies, and loss of dignity as citizens. Alito doesn’t care.

Conclusion

The Constitution doesn’t give SCOTUS the final say on our rights. It doesn’t say SCOTUS has the unrestrained power to throw out laws and rules created by the elected branches. That’s all invented by SCOTUS itself, taking power and control away from democratically-elected officials.

The Fox News Six would repeat every decision of the Reconstruction Era Supreme Court. They follow in the footsteps of people who don’t care.

Year-End SCOTUS Rant

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This past year brought us the full flowering of a central project of the filthy rich white people who fund the insurrection party: the takeover of SCOTUS by a gang of hardline fanatics. Big Wallet Boys don’t care about religion, they worship money. They want SCOTUS to screws up any government regulation that slows down their plundering of the American economya and Planet Earth. But they don’t care what SCOTUS does on culture war issues because they are not affected.

Of course SCOTUS has always been politically conservative and a blight on the promises America made to each of us. The few sprinkles of decency we’ve gotten over the centuries were either a) tiny steps towards enabling all Americans to benefit from Constitutional rights enjoyed by white men, or b) grudging reversals of old precedents inflicting the prejudices and hatreds of dead rich white men on we the living. For a detailed look at the disgusting history of SCOTUS on individual rights, see The Case Against The Supreme Court, by Erwin Chermerinsky

The provocateurs supported by the rich use culture war issues to anger up the rubes and while they’re distracted, SCOTUS can work toward the goal set by the rich: enabling their moneymen to steal the country blind and route us to an unlivable future.

We can identify the goals of the longer serving members. John Roberts is dead set against the Voting Rights Act, and has never missed a chance to use a case with a voting-related issue to subvert it. Clarence Thomas and Sam Alito have been stewing in their own bile so long they are fully rotted; they both live to stick it to the libs.

In 2022, though, we got bitch-slapped by the revanchists, including the three religious zealots appoint by Trump and McConnell. The Holy Six imposed their religious views in a number of cases, ruling that women have no right to control their own bodies, that coaches are free to dragoon their players into worshipping the god of the coach’s choice, and that religious leaders are free to spread a pandemic.

The big casualty is rational jurisprudence. In case after case, SCOTUS has ignored the trial record, made up its own facts, reached out to take cases before a record can be made, ignored precedent, including precedent about rejecting precedent, invented new Constitutional “doctrines”, taking faked-up cases for the sole purpose of striking down actions the Holy Six, the rubes, or rich people don’t like, and delaying justice through the shadow docket.

The result of these deviations from normal practice is the utter lack of stability. On Twitter law profs ask what they should teach about Constitutional law. The Fox News Six make it too easy: the Constitution means only whatever five of them say on any given day. The same question can be asked about Administrative law: is there any? And the power of Congress: does it have any? And the power of the Executive: does a Democratic President have any power? Not if SCOTUS doesn’t like it.

We have historically entrusted courts with the task of determining which rights belong to the people, and the extent to which governments at all levels can exercise their Constitutional powers in controlling people. Courts do this by interpreting and applying terms like liberty and due process found in the Constitution. Courts have always lagged behind the consensus of the American People on issues of rights, but change has come, if at a frustrating pace. For example, at least for now, governments don’t execute very many mentally ill people.

SCOTUS doesn’t care about any of this. Read Bruen, where Spouse of Insurrectionist Clarence Thomas says that the only restrictions on guns that are Constitutional are those in place at the time of the adoption of the Second Amendment, 1792. At that time, there was no concept of domestic violence. So, a Texas law prohibiting people subject to domestic abuse protective orders from owning guns is unconstitutional.

In other words, you don’t have the liberty of not being murdered by an abusive spouse. And you don’t have the liberty of going to a school, a place of worship, a concert, a grocery store, or a parade unless you are willing to take a bullet from a person armed by SCOTUS.

We can’t protect ourselves from corporate depredations either. SCOTUS restricts government regulation for years if not forever. It strikes down every law it doesn’t like, by which I mean any law rich people don’t like. In West Virginia v. EPA, it ignored the long-standing rule that SCOTUS doesn’t issue advisory opinions when it struck down a regulation of air pollution that was withdrawn before it ever took effect. And it invented a brand spanking-new doctrine, the major question doctrine, to arm itself further against Congress trying to regulate anything.

In Shelby County v. Holder, the Court announced that Congress hadn’t done enough investigation to justify the reauthorization of the Voting Rights Act. That act offended the Dignity Of The States, another brand new invention. That same logic can be used with the major questions doctrine to argue that Congress hasn’t done enough to justify authorizing agencies to regulate anything SCOTUS doesn’t like. And of course SCOTUS gets to decide whether a question is a major question.

Congress and executive agencies aren’t allowed to make rules to protect us from deadly pandemics. Only SCOTUS is allowed to do that. They killed mask mandates in the workplace, freed up unscrupulous religious leaders to infect their followers, and just recently interfered with international diplomacy by enjoining the Biden Administration from junking a Trump rule barring entry of asylum seekers because Covid is so terrifying. So much for consistency.

Neither Congress nor the President have resisted the hijacking of their power. They didn’t impose any limits on SCOTUS, by restricting its jurisdiction, cutting its funding, publicly attacking decisions as overtly political or poorly reasoned, holding hearings, or even taking the mild step of imposing ethical requirements. They just sit and watch the Holy Six enjoying their self-declared role of Philosopher Kings, the Platonic Ideal. Democracy? That’s not in the Constitution.

The worst part is that they expect you and me to respect them. We “cross a line”, in Alito’s words, when we say they are illegitimate. They are spitting on us and telling us we are powerless to stop them.

Are we?