The Draft Alito Opinion & The Dangerous Politicization Of The Supreme Court

Fred Wertheimer’s Weekly Note | May 5, 2022

The leaked draft of the Supreme Court opinion written by Justice Samuel Alito wipes out Roe v. Wade and takes away the constitutional right of women to make their own decisions about their bodies.

The draft opinion reverses a super precedent that for a half-century has been repeatedly relied on by women and consistently supported by the Court.

The draft opinion has all the hallmarks of a Justice Alito opinion. It is snarky, sarcastic, mean-spirited, and remarkably disrespectful of Justices who spent decades on the Court.

In writing that Roe v. Wade was “egregiously wrong from the start,” Alito gives the back of his hand to many past Supreme Court Justices, both conservative and liberal, and to the women who have relied on the decision for 50 years.

It is hard, if not impossible, to find a Supreme Court decision that takes away a constitutional right as the draft Alito opinion does.

The Alito draft also reflects a recent pattern in which the Supreme Court has ignored the longstanding principle of stare decisis or adhering to past decisions when ruling on similar cases. This is a principle that has protected the Court’s role as an independent arbiter of law rather than as just another political actor.

We apparently now have a Court that in recent years makes ad hoc decisions based on the ideological and partisan makeup of the Justices.

In the 2010 Citizens United decision, a majority on the Court ignored established precedent and threw out a campaign finance law that had been on the books for more than a century. In the 2013 Shelby County decision, a Court majority gutted a voting rights law that had been enacted nearly a half-century earlier.

This has happened because the makeup of the Court has changed in recent years.

If the law can be radically changed based on little more than changes in the makeup of the Justices then we end up with a highly politicized Supreme Court with seriously damaged credibility. And, we no longer have a Court capable of fulfilling its constitutional role as the independent, nonpartisan third branch of government.

A Quinnipiac University poll last November found that 61 percent of Americans think that Supreme Court is mainly motivated by politics, while only 32 percent said the Court is mainly motivated by the law. And a Gallup poll last September found that only 40 percent of Americans approved of the job the Court was doing, the lowest percentage since 2000 when Gallup started polling on this matter.

The Alito draft opinion became public as the result of an unprecedented leak that violated a fundamental unwritten rule of the Court that deliberations of the Justices are kept private. Chief Justice John Roberts called it “an egregious breach of trust” and initiated an investigation by the Court’s Marshal to find the leaker.

The Chief Justice is appropriately concerned about the serious damage the leak has done to the reputation and credibility of the Court.

But, Senate Minority Leader Mitch McConnell (R-KY) has zero credibility in expressing his “outrage” about the leak. No one has done more damage to the Court in recent decades than McConnell.

Senator McConnell’s refusal for almost 10 months in 2016 to allow the Senate to consider President Obama’s Supreme Court nomination of Judge Merrick Garland was unprecedented and a misuse and abuse of his office. McConnell turned the Court into a political football.

McConnell’s extraordinary hypocrisy became crystal clear in 2020 when, in the final days of Trump’s reelection campaign, McConnell rammed the confirmation of Trump’s Supreme Court nominee Judge Amy Coney Barrett through the Senate.

McConnell’s craven manipulation of the Court’s makeup has done far greater damage to the Supreme Court’s credibility than was done by the leaker of the Alito opinion.

The Supreme Court is now in uncharted waters regarding its future role and credibility in our constitutional system.

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Fred’s Weekly Note appears each Thursday in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s newsletter here. And, subscribe for free here and receive your copy each week via email.