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Opinion The other scary thing about Alito’s draft ruling on abortion

The Supreme Court justices in Washington on April 23, 2021. Seated, from left: Samuel A. Alito Jr., Clarence Thomas, Chief Justice John G. Roberts Jr., Stephen G. Breyer and Sonia Sotomayor; standing, from left: Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch and Amy Coney Barrett. (Erin Schaff/New York Times via AP)
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correction

An earlier version of this article misidentified Justice Byron White.

To justify stripping women of their right to choose an abortion, Supreme Court Justice Samuel A. Alito Jr.'s leaked draft opinion had to pull from all sorts of sources. The judicial screed relies on a 13th-century treatise that held women in regard “inferior to that of men.” It cites the work of a 17th-century jurist who treated women as witches, or property.

But most of all, Alito’s argument draws from a source much more recent: dissenting opinions from past Supreme Court cases. In their own way, these dissents are just as scary — but they also provide a model for how to weather this dark moment.

It’s not unusual for dissents of the past to show up in new rulings. As Neal Katyal, acting solicitor general during the Obama administration, told me recently, “The seeds of a dissent later flower into a majority opinion.” The most famous of these is the landmark Brown v. Board of Education decision of 1954, which stood on the powerful dissent of Justice John Marshall Harlan in the “separate but equal” shame that was the majority opinion in Plessy v. Ferguson in 1896.

Maya Wiley, a former federal prosecutor who is now president and CEO of the Leadership Conference on Civil and Human Rights, described dissents as “the brief for a future appeal to the Supreme Court from the ghost of Supreme Courts past.”

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If that’s the case, then the current court is totally haunted.

David Cole: The power of a Supreme Court dissent

Alito’s draft relies on conservative dissents the way a drag queen relies on glitter. When he accuses the Roe v. Wade majority of “wielding nothing but ‘raw judicial power,’ ” he’s borrowing the phrase from Justice Byron White’s stinging 1973 dissent. Arguing that Roe removed the democratic process from abortion rulemaking, Alito cites White’s dissent in Thornburgh v. American College of Obstetricians and Gynecologists, in which he wrote that “decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people’s authority.”

When it came to Casey’s 1992 prohibition on subjecting women seeking abortions to “undue burdens,” Alito turned to the dissenting words of Justice Antonin Scalia. Scalia described the new “undue burden” benchmark as “inherently standardless” and dependent upon a judge’s “personal preferences about abortion.”

The dissents Alito stakes his argument on don’t have to do with only abortion. They suggest threats to other constitutional rights, such as contraception access or LGBTQ protections. But dissents can cut both ways.

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In fact, I sort of owe my same-sex marriage to Scalia. He dissented in the 2013 United States v. Windsor, which invalidated the so-called Defense of Marriage Act prohibition of federal recognition of same-sex couples. The dissent was powerful not because it was later adopted, but because it was prescient; Scalia correctly predicted that the majority opinion would lead to challenges of state bans on same-sex marriage.

Those challenges, Scalia wrote, "will lead with this Court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition [of marriage] has ‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples.”

A constitutional right to marry for same-sex couples — and “equal dignity in the eyes of the law” — arrived two years later in Obergefell v. Hodges, whose petitioners argued just what Scalia laid out. Thanks, Your Honor.

Alito’s draft ruling on abortion is a warning to LGBTQ Americans

More directly helpful in the court’s coming era of conservative dominance, though, will be the dissents from its left wing. The three sitting liberals’ progressive yet realistic legal outlooks mean they are excellent mapmakers for future justices. Plus, reinforcements arrive this fall, in the form of Ketanji Brown Jackson; her dissenting voice will be equally vital in laying the groundwork to arrest the overreach of the 6-3 majority.

Janai Nelson, president of the NAACP Legal Defense Fund, told me she believes that Jackson’s dissents will be “prescient as to what law the Supreme Court will eventually produce when it is rebalanced to reflect the will of a majority of Americans.”

Katyal goes even further: “Even if she joins a Court that is far more conservative than she is, she is writing not just for the case at hand, but for history.”

Quite the consolation prize, as fundamental rights are under threat in the here and now. Still, the Alito draft and its chock-fullness of dissenting opinions remind us of the value of advancing your argument even when the numbers aren’t on your side. Our Constitution is a mighty document, but the rights it secures require constant vigilance — and the unwavering voices of justices who dissent against acts of “raw judicial power” that would take those rights away.

So if there are going to be ghosts, at least let them be friendly ones.

Follow Jonathan Capehart on Twitter: @Capehartj. Subscribe to “Capehart, his weekly podcast.

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