Sam Alito and John Roberts appeal to 'history and tradition' — while dancing around the burning Constitution
Watching Justice Samuel Alito go spelunking in his Dobbs opinion through centuries of so-called history and tradition in search of legal justifications to overturn the right to abortion decided almost 50 years ago in Roe v. Wade was like watching a boy play in a pile of dirt. Where do I dig next, he seemed to be muttering to himself as he shoveled manure from a slave-era law in Virginia onto an 18th-century pile of garbage he quoted from some doofus who believed women were inferior beings. Clarence Thomas was right there behind him in his decision that New York can't prevent people from carrying concealed weapons, plowing through statutes from jolly old England and the American frontier to show that Dodge City didn't really mean it when they told cowboys they had to check their six-guns with the sheriff if they came into town.
And then along came Chief Justice Roberts as clean-up man, swinging the club of something known as the "major questions doctrine" to deny the Environmental Protection Agency its statutory authority to — duh — protect the environment unless Congress spells out exactly how they should do it. According to Roberts, it is Congress, not the EPA, that has to write a rule telling corporations they can't empty industrial waste directly into creeks, rivers or the ocean because it's a "major question" if it costs corporations a lot of money, so let's make it as hard as possible for the government to take a chunk out of our golf buddies' bottom lines.
Throughout the entire year of decisions by a court that for the first time included all three of the Supreme Court's newest and most conservative members, the Republican majority decided to jettison the doctrine of stare decisis, which means to stand by things decided, and employ their own doctrine on how precedents should be treated: Stare quisquilias acervum or "stand by the trash heap," where they proceeded to throw the court's previous decisions and entire articles of the Constitution.
All of this in service to their favorite doctrine of all — rights granted by the Constitution must be "deeply rooted in the nation's history and tradition" or they aren't really rights at all. Legal scholars have been predicting that the court will use its new jewel of a doctrine to overturn Obergefell v. Hodges, not to mention other recent decisions recognizing rights under the privacy provision of the equal protection clause of the 14th Amendment … because we have no "history and tradition" of same-sex marriage or gay sex or rubbers or the pill, or anything else they simply don't like.
To justify its abandonment of the court's "history and tradition" of respecting and upholding its previous decisions, the Supreme Court called upon a favorite from an era they apparently revere, states' rights. Speaking for the court's conservative majority, Alito decided to "return" abortion to the control of the states, several of which promptly made performing abortions illegal and effectively established new rules — or re-established old ones — which dictated that women must carry to term babies resulting from rape or incest, and then give birth to them, relying, it would seem, on our deeply rooted history and tradition of slavery.
What can be done about the court's prejudice masquerading as reason? Doesn't the wrongheadedness of the "history and tradition" of the way women were treated at the time the 14th Amendment was written tell us something about all the anti-abortion laws of the past Alito quoted in the world's longest footnote? Women weren't allowed to vote, to sit on juries, to own property separate from husbands or male members of their families, and in some states they did not have the right to sign contracts. Oh, by the way, they weren't allowed to have abortions, either.
It took decades of fighting for women's rights for us to get rid of some forms of prejudice against women. But "history and tradition" demands we go back to banning abortions, according to Alito.
Alito's decision features a gigantic hole not even the dissenters pointed out: To have "history and tradition," it has to start somewhere. Precedents become part of history only after they make history. If the court is going to require that all our rights must be grounded in history and tradition, that's exactly what Obergefell and the other privacy rights decisions do. They establish a baseline of history that can be depended upon in the future rather than reaching back to 1868 in search of one.
I say if they're not going to respect their own decisions, then neither should we, and neither should lower court federal judges and state judges and legislatures.
Legal scholars use the term "vertical stare decisis" to describe the principle that lower courts should follow and respect the decisions of the Supreme Court. But the law is not something handed down from a higher power or engraved on a tablet with a hammer and chisel. It is a living thing, and it has to breathe and move and eat and expel waste in order to stay alive, and some of the waste that must be expelled can be found in the court's most recent decisions.
I'll tell you how I know this.
When my friend and classmate David Vaught was going to NYU Law School in the early 1970s, I used to pick him up late at night from the law library, and we would drive home together in his old pickup truck to the barge where we were living on the Hudson River. One night as we passed through the Lincoln Tunnel on our way to where the dock where the barge was tied up in West New York, New Jersey, David almost exploded with happiness over a discovery he had made.
He had been given a typical first-year law question to answer, and the way NYU taught its students to solve problems was to trace them to their source. He was being taught that laws came not only from legislatures but, over decades, from court cases and the decisions of judges. The lesson was that legal questions such as who is liable for damages in various situations are never resolved once and for all — the solutions change and even mutate over the years as lawyers argue cases and judges make decisions and new laws are born.
"You can almost hear them arguing amongst themselves, like doctors over a patient," he explained to me. "In one case, a judge will say, well, I think it's the liver, so I'm going to fix it by administering this correction. And then, 10 years later, another judge will come along and say, no, it was the spleen, and it can't be repaired. We must take it out." My friend explained that the cases flow like blood through a body's circulatory system. "The arguments are its nervous system. The courts are the place where the law learns. Judges' decisions are its brain, its memories. Because the law is manmade, it has a human form, and it gets sick and can be made well. The law is happy and sad and stupid and smart just like we are. It's alive."
He was right. We are being forced to listen to a cacophony of dunces arguing over our Constitution right now. The New York Times last Sunday published an op-ed called "Is the Right to Same-Sex Marriage Next?"
No. We are louder than they are, and we have all of our minds and ideas and votes in the songbook from which democracy sings.