Thinking about abortion: What a rational and an irrational judge sound like

A rational judge

This is a footnote a rational judge in Georgia wrote in a recent abortion case. The Dobbs case is the recent radical right Supreme Court decision that overturned Roe v. Wade, which eliminated the constitutional right to abortion. This bit of reasoning is worth consideration.

The state argues that Dobbs reflects no change in constitutional law “because there was never a federal constitutional right to abortion.” (Defendant’s response at 2. Emphasis in original.) Except there was. For 50 years. And we know it because the very same Supreme Court told us so. Repeatedly. Those prior pronouncements carried no lesser effect and were entitled to no lesser deference in Georgia or anywhere else in the Republic than that which we all must afford the Dobbs decision. Dobbs is now the law of the land; this court and every other court in America are bound to apply it faithfully and completely. The Dobbs majority is not somehow “more correct” than the majority that birthed Roe or Casey. Despite its frothy language disparaging the views espoused by previous Justices, the magic of Dobbs is not its special insight into historical “facts” or its monopoly on constitutional hermeneutics.* It is simply numbers. More Justices today believe that the U.S. Constitution does not protect a woman’s right to choose to do with her body than did in that same institution 50 years ago. This new majority has provided our nation with a revised (and controlling) interpretation of what the unchanged words of the U.S. Constitution really mean. And until that interpretation changes again, it is the law.

* Hermeneutics: the branch of knowledge that deals with interpretation, especially of the Bible or literary texts

This reasoning reflects a doctrine called American Legal Reasoning (ALR). Radical right Republicans and conservatives hate it and vehemently reject it. In short, ALR stands for the proposition that since laws usually cannot be perfectly clear (true) and that society and technology change over time (also true), judges need to interpret ambiguity and newly arising incoherence in laws that arise from changing circumstances. Is ALR mostly rational or not? It’s imperfect, but I think it is. Human laws and legal systems cannot be perfect. 

An irrational judge

The current crop of radical right Republican Christian nationalist judges apply various tactics to reach decisions. But the Christian-capitalist radical right’s core argument is that the US Constitution and most laws can be unambiguously interpreted (not true) and thus their meaning are fixed and cannot change over time. These judges make new things up to arrive at decisions dictated by either (i) literally infallible fundamentalist Christian nationalist dogma, and/or (ii) brass knuckles capitalist profit motive. 

The League of Women Voters summarized some of the “reasoning” that the hyper-radical right Christian nationalist judge, Sam Alito used to overturn Roe v. Wade in his Dobbs decision. The LWV wrote:

On June 24, 2022, the United States Supreme Court released its decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to abortion.

Writing for the majority, Justice Alito stated, “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” In so doing, he and four other conservative justices turned back the clock — not only essentially sending Americans back to a time before Roe v. Wade was decided, but also looking almost exclusively at reproductive rights from the lens of the mid-1800s and earlier to determine whether the Constitution confers a right to abortion today.

Justice Alito maintained that, contrary to the fears of many civil rights advocates, this decision had no bearing on other unenumerated rights (rights not specifically spelled out in the Constitution but nevertheless recognized as fundamental) such as marriage equality, same-sex intimacy, and contraception access. However, Justice Thomas undermined this assertion by penning a concurrence calling for a new look at the decisions protecting all the above rights, and more.

The crux of Dobbs is a highly constrained and antiquated view of what constitutes a fundamental constitutional right. Specifically, Justice Alito wrote that for a right to be protected by the Constitution, it must be either explicitly spelled out in the text or “deeply rooted in [our] history and tradition.”

Essentially all experts on American history believe that the US Constitution had no rationally discernable original intent or meaning. It always meant different things to different people, including the people who wrote it and argued for its ratification. Those people bitterly disagreed on a lot of what is in the Constitution. Many or most of those disagreements, or close variants, remain bitterly contested today. That shows the ambiguity that ALR thinking was trying to address for modern times and circumstances. The Roe v. Wade decision arguably flowed from ALR reasoning and the state of society and medical technology in the 1970s when Roe was decided.

Alito’s “deeply rooted in history and tradition” test is not explicitly described in the Constitution. He just made it up so he could cherry pick some history that allowed him to overturn Roe v. Wade in his Dobbs decision. What does deeply rooted in history and tradition mean? It means whatever the judge says it means for each contested constitutional right. 

Right now, radical right cherry picking and dogma-constrained legal theories completely dominate US law, e.g., Alito’s deeply rooted in history and tradition test. Christian nationalist and capitalist dogmas have won. We can expect to see many more major decisions that give decisions what Christian nationalism and capitalism both demand. In that regard, the law has become fairly predictable. The Christian fundamentalists and ruthless capitalists are going to get most of what they want, probably nearly all of it.