Unpacking Justice Alito’s Soundly Constitutional and Philosophically Coherent Dobbs Opinion

National Catholic Register, 29 June 2022

Alito’s opinion in Dobbs buries the ‘sweet-mystery’ court preferred by Justice Anthony Kennedy.

Roe was bad. Casey was worse. 

The Dobbs decision to overturn both strikes a blow for not only for constitutional law but also philosophical coherence. 

In Roe v. Wade (1973) the Supreme Court of the United States (SCOTUS) said — as Justice Samuel Alito’s majority opinion put it — “that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”

This “unfocused analysis” — Alito’s term — was bad constitutional law, finding a right not in the U.S. Constitution itself, but reading it into the text and tradition. Twenty years later, in Planned Parenthood v. Casey (1992), the court “grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause.”

The Casey court wished to lodge the abortion right somewhere. In order to do that it had to demonstrate that the “liberty” of the 14th Amendment included abortion.

In Dobbs, Alito wrote that “‘liberty’ is a capacious term. As Lincoln once said: ‘We all declare for Liberty; but in using the same word we do not all mean the same thing.’”

At the heart of Casey — the controlling opinion written by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter — was a claim about liberty. Did the general conception of liberty in the American constitutional tradition include abortion?

Arguing that it did, the Casey Court went much further still, making the claim that “liberty” included abortion and much else besides. It became one of the most infamous passages in the entire history of SCOTUS jurisprudence: 

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Thus, Casey was about so much more than abortion. It offered an understanding of liberty that made the individual the arbiter of everything, including the meaning of the universe. It was the most radical principle of autonomy that one could imagine, completely independent from the truth about things, or the Constitution itself.

The late Justice Antonin Scalia heaped scorn and withering sarcasm on what he called the “sweet-mystery-of-life” passage, ridiculing the formulation of Kennedy, widely understood to be its author. Scalia argued that there was nothing that could not be included in Kennedy’s “sweet-mystery” approach to liberty. 

In 2003, Kennedy authored the majority opinion in Lawrence, which overturned a Texas sodomy statute and found a generalized right to sexual expression, “sweet-mystery” style. 

Scalia wrote in dissent:

“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), ‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’ what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution?’"

Scalia was pointing out that if the “sweet-mystery” of Casey was taken to its logical end, it would end up in a constitutional right to same-sex marriage.

Sure enough, in 2015, the court found a constitutional right to same-sex marriage. Kennedy again wrote for the majority. Two decades into the “sweet-mystery” hegemony at the court, Scalia had had enough and insulted Kennedy’s philosophical competence in the notorious “fortune-cookie” footnote

:

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

The idea of liberty as “expressing identity” prevailed as the “sweet-mystery” court reigned for 30 years, from 1992 to 2022. Alito’s opinion in Dobbs buries the “sweet-mystery” court. Kennedy is retired and Scalia is dead, and their rhetorical styles have gone with them. But Alito takes the issue head-on, in more reserved tones.

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