The Multiple Frauds of Alito's Draft Decision

The Multiple Frauds of Alito's Draft on Abortion

The first fraud of Alito's draft is the interpretive doctrine of “originalism,” by which conservative jurists claim that the only principled approach to interpreting the U.S. Constitution is by reference to the text as originally intended and understood. Originalism first developed by conservatives opposed to the anti-segregationist decision in Brown v. Board in 1954 and may have been honestly intended by some as a corrective to the bold decisions of the Warren Court. But, under the dark-money sponsorship of the Federalist Society it has become a highly dishonest game that encourages invalidation of laws with which conservative Justices disagree, through selective reference to the meaning of individual words and history, especially those of the 1787 main text and the Bill of Rights adopted in 1789.

There are two fraudulent aspects of this game. First, the claim by originalists of devotion to the Constitution ignores the fact that the Founders had no expectation that the Supreme Court would later claim power to overrule laws made by the first branch of government, the U.S. Congress, based on whether they viewed those laws as constitutional. That power was first claimed by Chief Justice John Marshall in 1803, as the right of judicial review on constitutionality. It is not part of the U.S. Constitution and no interpretive theory based on it should be viewed as legitimately concerned with the constitution's original meaning. As for using definitional arguments about carefully selected words and phrases to reach a highly political decision (i.e., favored by the party that appointed the judges) to invalidate laws established by the Congress's votes and the Presidents' signatures, founder bodies would turn in graves if they discovered what the Federalist Society has led us to. Add to that the overturn of 50 years of precedent with this technique, and the repeatedly ad hominem claim that Roe was badly argued, and we have reached a preposterous fraudulent point in the life of the U.S. Supreme Court.

The second fraudulent aspect of originalism is the ease with which Conservative originalist jurists forget that the original text of the Constitution to which they mainly refer was written at a time that only White males with property were considered full citizens with the power to vote for their representatives, including the presidents that put forward nominees to the Supreme Court. The laws and amendments that widened citizenship to African-Americans and women came much later, mainly with the 13th, 14th, and 15th amendments passed after the Civil War; and by the 19th Amendment in 1920. But most originalists, including Alito in his anti-abortion draft, emphasize the 1787-89 texts, written by and for propertied White men. Similarly , originalists fail to recognize the relative absence of women and African-Americans in decision-making positions, judicial and representative, all the way up to the present. Thus the supposedly principled stance of originalism is often a cover for continued blindness to the sexism and racism of our nation's history, which were supposedly addressed by later Amendments that they selectively choose to ignore or devalue.

It should go without saying, though Alito emphasizes it, that the Founders had no reason to address abortion, since none of them ever had to contemplate one. But the 14th Amendment establishes the right of all persons “the equal protection of the laws”, and Alito's choice to denigrate that text as a weak argument, and his emphasis of distant history all the way back to the 13th century, is a decision that carries on the old assumption of women to be second-class citizens, without the right men have to have any control over their bodies in the extremely common feminine life circumstance of pregnancy. (Please don't make me read the draft decision again in order to provide specific examples of Alito's misogynist reasoning; once through this arrogant smug garbage was enough).

The Roe decision of 1973 was not perfect in its approach to equal protection of the laws for women; there were no women on the Supreme Court at the time, and very few in Congress. It said more about doctor's rights than women's, but at least it recognized in its trimester analysis, that women should not lose all their rights to decisions regarding their physical health to a fetus, a potential life, during the period that fetus has no ability to survive outside of the woman's 24/7 care. Alito holds the term “potential life” up to ridicule repeatedly in his draft, supposing, I guess, that this shows him to be far more respectful of human life than were the deciders of Roe. What it really shows, is that he shamelessly has more respect for potential life than for actual women's lives. The fact that he quotes liberals to back up some of his arguments and that the draft is joined by a female justice, Coney Barrett, is just more cover for his disrespect. For Alito, the 14th amendment offers no protection at all even for a woman who is raped or whose life is endangered by her pregnancy. But, by the way, it does protect the rights of corporations to personhood, including the right to flood the public square to secretly funded and highly dishonest speech, drowning out the 1st amendment rights of actual people. (That's from a well-argued decision with which Alito agreed.)

That brings me to the other fraudulent bases of Alito's draft. There are 9 justices on the Supreme Court. Of the 6 Conservative, Republican-nominated justices, only 2 were nominated by a President that won the popular vote. (Note that the Republican electoral college advantage stems in large part from their power-grabbing granting of statehood in 1889-90 to 5 barely-populated contiguous territories that have been very secure Republican votes in the Senate and the electoral college ever since: North and South Dakota, Montana, Idaho and Wyoming. This is not likely to change, given the advantage this gave the Republicans in the Senate, since they can block the addition of states that might not bring similar advantage, as they are doing in the case of D.C.)

One of the 6 arguably fraudulent positions, Gorsuch's, was stolen by then-Majority Leader and Republican Mitch McConnell when he blocked the Senate's constitutional duty to advise and consent to Obama's SOTU nomination in early 2016, on the argument that the voters should first decide who the next president would be. Another was stolen by McConnell's determination to confirm Trump's nomination of Amy Coney Barrett a month after the sudden death of Ruth Ginsberg in October of 2020, after millions of votes for the next President had been cast and all polls showed a win for the Democratic candidate, Joe Biden.

Chief Justice John Roberts's position was fraudulently gotten when he claimed during his nomination hearings that he would only “call balls and strikes.” He then proceeded to overturn the recently renewed and seminal Voting Rights Act in 2013, on the argument that racism against African-American--which had kept them from voting for nearly a hundred years after their right was established in the 15th amendment--was now over because we had elected an African-American president. Never mind that that President and his wife were being regularly subjected to racial slurs comparing them to monkeys and to unprecedented obstructionism by Republican, and that anti-Black voting regulations were passed in multiple states the day after his decision. The fraudulence of that decision is made more clear by Roberts's work in the Reagan White House to block application of the Voting Rights Act in the early 1980s, and by his involvement, along with Coney Barrett and Kavanaugh, in securing the 2000 election for the Republican candidate. The fraud is also apparent in the Citizens' United case in 2010, for which he abused his power as Chief Justice to hold the case over and extend it from a narrow decision about the funding of a political documentary, to the removal almost all limits on corporate and billionaire donations to campaigns, which have been massively favorable to Republicans, who have been ready votes for tax cuts to the rich. Robertse also joined Scalia's opinion on the 2nd Amendment, which ignored the plain meaning of the entire first clause in order to find, in favor of the NRA-funded Republican party, that that amendment conferred a personal right to arms, something not found by any Supreme Court before. Balls and strikes, sure.

That leaves the fraud of Thomas and Kavanaugh, the me-too justices. First consider Thomas , whose wife, and quite possibly himself was a key participant of the coup and both of whom I suspect of leaking Alito's draft in order to keep the Conservatives from pulling back from the harshness of the decision. Thomas got on the court by perjuring himself in his hearings repeatedly (on his relations with Hill and other women, and on Roe). He would not have survived a filibuster, which Democrats did not then use against nominees. Nor would Kavanaugh (Republicans by then had made the filibuster defunct for SOTU nominations.). Kavanaugh also perjured himself in his hearings, and had the additional cover of a fraudulent FBI investigation in which obvious relevant witnesses were not even contacted by the Republican-appointed FBI Director, by order of the White House.

I'd like to close with a personal note. In the fall of 1972, a few months before Roe legalized abortion rights for women, I was in college experiencing a common fear of women in my generation, that I might be pregnant due to having unprotected sex. Alito may view or have viewed that common situation as, according to his religion, immoral and irresponsible. Ok, but we're supposed to have a separation of church and state in this country. And sex in college, if not in high school, was a right of passage in my time and cultural milieu, but all the risks fell on women. Risks of sudden passion, misunderstood consent, unavailability of birth control, or just teenage stupidity; no male had to worry about this. If a young woman made a conscious decision to have sex in a responsible way, that meant finding a way to get to a doctor willing to help, or, in my case, a long hike to the Planned Parenthood clinic at 7 AM in the bad part of town to endure a freezing, humiliating vaginal exam and then maybe get prescription for pills with many uncomfortable side effects, if you withstood all the discouraging advice. Then there was a month to wait before the pills would work. Or, if you had sex without the protection, or if it failed, you spent an anxious month waiting for your period, and thinking about how you could possibly find funds and someone to help arrange an illegal abortion. Or you could give up your life for most of a year in shame to go to a home for unwed mothers, after which your life would never be the same.

We're going back to that, and worse, since some of the antiabortion laws criminalize and harshly punish women, even those who have suffered from an unwanted miscarriage. The trouble with Alito and his originalism is that he doesn't care about the millions of women (and NO men) affected by his decision at all. His smug pride in his “originalist” interpretive prowess can only be shaken the possibility that he and his cohorts might weaken their stance in the face of public opinion. Such people should never be judges, let alone 6 of them on the highest court of the land.