The reasoning in Justice Samuel Alito's draft opinion overturning Roe v. Wade "is contrived and transparently flawed — religious dogma dressed up as law," writes Goldstone.
Goldstone’s most recent book is "On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights."
Ordinarily, the word “unprecedented” is hyperbole, similar to “Breaking news!” or “Greatest ever!” When used to describe the current danger to American democracy, however, it is all too appropriate. Never in the nation’s history have democratic institutions been so at risk under what would first appear to be banal circumstances.
There have been previous threats to America’s system of government, but each was spurred by a single overriding issue that created deep doubt as to whether democracy was up to resolving it. For the first 75 years of the nation’s existence, the United States wrestled with whether human slavery would be perpetuated or abolished, which left the Union teetering on the edge of dissolution. In 1861, it fell into Civil War and the succeeding decades were spent trying to reinvigorate democracy, first by bringing Black Americans into the political system, then, in a sad irony, by shutting them out of it.
In the 1930s, during the Great Depression, with unemployment in excess of 20 percent, many Americans looked to Europe and what seemed to be the enormous success of Adolph Hitler and Benito Mussolini in pulling their countries out of similar quagmires and wondered if fascism might not be a better system for the United States. As Ira Katznelson described in his brilliant book, “Fear Itself,” it was only the political genius of Franklin Roosevelt that prevented fascism from gaining perhaps unstoppable momentum here.
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But slavery is no more — although racism, sadly, persists — and the economy, despite a job-crushing pandemic and high inflation, retains a solid base with unemployment matching a 20-year low. There is cause for dissatisfaction, surely, but if the past five years should have taught Americans anything, it is that the nation’s democratic institutions left it uniquely positioned to find solutions to even the most seemingly intractable problems.
It might appear odd, therefore, that a sizable segment of the American population seems willing, if not eager, to cast aside our most sacred traditions, not because of a threat from abroad or even, for all the chest thumping, one from within. At its core, these anti-democrats are using as their justification a claim to moral superiority, which overlaps with a desperate need to perpetuate minority rule.
The hypocrisy of those on this dubious high ground could not be more striking. Those who claim to be defending the lives of the unborn are all too willing to abandon those lives almost from the second they leave the womb. Those who claim to be defending liberty are content to see liberty be denied for their opponents. Those who scream about rigging elections and gaming the system spend a good deal of their time trying to rig elections and game the system. Those who decry cancel culture cheer the banning of books and restrictions on free expression in schools.
And, as the Supreme Court has repeatedly demonstrated in recent years, those who most vociferously defend religious liberty seek to impose their own religious beliefs on others.
In Masterpiece Bakeshop v. Colorado Civil Rights Commission, the court ruled that a vendor could refuse service to a gay couple on religious grounds. In a dissent on an emergency petition from Catholic health care workers in New York, Justice Neil Gorsuch favored granting them an exemption from the state’s vaccine mandate on the grounds that the vaccines had been developed from decades-old stem cells obtained from aborted fetuses. This despite directives from both the pope and the U.S. Conference of Catholic Bishops that taking the vaccine was both acceptable and advisable.
But it is in Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization that the full agenda of the Supreme Court’s conservative majority became clear. Alito, in a 98-page opinion reeking with smug arrogance, belittled not only liberal justices who had defended a woman’s right to choose to have an abortion but also Republican appointees Harry Blackmun, David Souter, Sandra Day O’Conner and Anthony Kennedy for agreeing. He blithely tossed aside 50 years of precedent in Roe v. Wade and Planned Parenthood v. Casey as “egregiously wrong” from the day they were decided, self-righteously comparing his opinion to the overturn of Plessy v. Ferguson by Brown v. Board of Education. It seems to have eluded him that Plessy took away a right that Brown restored, which is precisely the opposite of what he and his four colleagues would do in Dobbs.
Abortion is one of the most delicate and difficult issues with which both the court and the country must grapple. As much as either side is loath to admit it, each has a point. Alito’s opinion does not balance the nuances, however, but instead simply dismisses one side while fully embracing the other. His reasoning, as many legal analysts have pointed out, is contrived and transparently flawed — religious dogma dressed up as law.
There is a word for a system of government in which the dictates of religion override other freedoms and civil guarantees. Theocracy.
One pundit said that with this decision and those on voting rights, the United States has officially returned to the 19th century. Others have described the decision as a triumph for originalism, and however questionable that legal philosophy may be, it is difficult to view it as anything but advocating a return to the 18th century. But Alito goes back farther than that. The root of conservative Catholic education remains the scholasticism of Peter Abelard, a 12th century theologian who employed a similar version of Aristotelian logic in biblical analysis as does Alito in constitutional analysis. (This perhaps explains Alito using both 13th and 17th century sources as “precedents.”)
It would be one thing if Alito and his fellow conservatives were giving voice to the will of the people, which in theory is a precept of democracy. But instead, he is perpetrating the court’s march to theocracy with both a religious and political minority. Catholics, of course, have the right to worship as they please and to follow the dictates of their Church, but Catholics are only 20 percent of the population. And with the exception of George W. Bush’s victory over John Kerry in 2004, no Republican has won the popular vote since George H. W. Bush in 1988.
While tyranny of the majority may put democracy at risk, tyranny of the minority is no democracy at all. Americans rejected slavery and Americans rejected fascism. The current threat is more subtle, thus more insidious, and so it remains to be seen whether Americans will reject theocracy as well.
