Alito’s Friends Assure Us This Time We Really Shouldn’t Worry / &c by Jonathan Chait

Alito’s Friends Assure Us This Time We Really Shouldn’t Worry

 &c by Jonathan Chait

The Wall Street Journal has written a new editorial telling liberals to calm down about the imminent reversal of Roe v. Wade. Specifically, the editorial takes issue with the claim that the Court is setting a new precedent that will permit to strike down other liberal rulings that flow from the same basis as the right to abortion:

Photo: Wall Street Journal

 

The argument is worth a close read. But before we do that, let’s take a trip back in time. Less than three years ago, the Journal ran an editorial with an extremely similar headline, mocking the notion that the Court would ever overturn Roe. It was the same headline with just one word changed:

Photo: Wall Street Journal

 

It was not just that the Journal doubted the Court would overturn Roe — a defensible, if aggressive, prediction — but that it considered this analysis so plainly correct that it devoted much of its space to depicting liberals who feared otherwise as obvious liars:

“Abortion will be illegal in twenty states in 18 months,” tweeted Jeffrey Toobin, the legal pundit, in a classic of cool, even-handed CNN analysis soon after the resignation news. Democratic Senate leader Chuck Schumer was almost as definitive. “Whomever the president picks, it is all too likely they’re going to overturn health-care protections and Roe v. Wade,” the 1973 abortion-rights decision, Mr. Schumer declared. “We don’t need to guess.”

The liberal line is always that Roe hangs by a judicial thread, and one more conservative Justice will doom it. Yet Roe still stands after nearly five decades. Our guess is that this will be true even if President Trump nominates another Justice Gorsuch. The reason is the power of stare decisis, or precedent, and how conservatives view the role of the Court in supporting the credibility of the law …

Liberals want to scare Americans to believe abortion rights are in peril so they can intimidate enough GOP Senators to defeat whoever Mr. Trump nominates to replace Justice Kennedy.

The headlines are already targeting GOP Senators Susan Collins, Lisa Murkowski and Shelley Moore Capito, and abortion is the political cudgel. Ms. Collins said over the weekend that she won’t vote to confirm a nominee who shows “hostility” to Roe. She isn’t likely to face such a choice.

No one on Mr. Trump’s list of nominees will claim to want to overturn Roe—and not because they are lying. In their caution and deference to precedent, they will be showing proper conservative respect for the law and the reputation of the Court.”

Given the Journal’s belief that the Court would “be showing proper conservative respect for the law” by upholding Roe, it would seem to follow that failing to uphold Roe would indicate a lack of proper respect for the law.

Anyway, it would be nice if the Journal at least acknowledged that its last editorial insisting the Court’s right-wingers would never strike down a precedent was wrong before moving on to insisting the next precedent is definitely safe.

Of course, just because the Journal was wrong the last time it lectured liberals not to worry about the right-wing Court striking down precedent, it doesn’t necessarily mean its next warning is wrong. We should judge the logic on its own merits. The trouble is that the logic it marshals to support this conclusion is distressingly feeble.

The most alarming section of Justice Alito’s leaked opinion comes when he argues that striking down Roe, which created an unenumerated though limited right to abortion, will not lead to further erosion of other unenumerated rights, like gay marriage.

Alito draws this distinction by saying only abortion involves a “critical moral question.”

“None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion,” the draft says. “They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.”

So gay marriage is safe because it’s not a “critical moral question.” It’s not clear whether Alito believes the issue isn’t moral, isn’t critical, or is neither. In any case, the distinction seems to be completely arbitrary.

Justice Alito    Photo-Illustration: Intelligencer; Photo: Erin Schaff-Pool/Getty Images

 

The Journal’s latest editorial explains that the distinction will hold because of … public opinion:

Yet unlike Roe, both of those decisions have established themselves as durable precedents with broad public acceptance. A Gallup poll in 2019 found that 92% of Americans believed using birth control to be “morally acceptable.” That was up three points since 2012, and it included 90% of the respondents who identified as conservative or very conservative.

That stands in contrast to abortion, which remains a contested moral and political issue.

This may well be correct. Maybe the conservative jurists are willing to strike down rights that are supported by 60 percent of the country but not rights supported by 70 or 90 percent. But what does this say about their legal reasoning?

The right has been tripping over itself to praise the depth and substance of Alito’s draft ruling. David Garrow calls the draft an “originalist triumph.” It is “the crowning achievement of the conservative legal movement,” gushes Michael Brendan Dougherty. Yet curiously, as its defenders need to ride to its rescue, its towering originalist argument rests on polling data.

Either conservatives are trying to buck up the justices to support a weak ruling or originalism is not quite what we were told.

This week, the New York Times looked into Elon Musk’s childhood in South Africa for clues as to what it would reveal about his ownership of Twitter. The reporters turned up several interesting details, all of which reflect favorably on Musk. He was raised to oppose apartheid, had black friends and stood up for them when white students bullied them, and left the country rather than serve in its military.

And yet weirdly, the story is framed as a kind of hit on Musk. More bizarrely, it presents his background as somehow undermining his advocacy of free-speech norms on Twitter. Here is how the original version of the story read:

Mr. Musk has heralded his purchase of Twitter as a victory for free speech, having criticized the platform for removing posts and banning users. But as a white South African, he came up in a time and place in which there was hardly a free exchange of ideas, and he would not have had to suffer the violent consequences of misinformation.

The word “but” implies a contradiction. What contradiction is there between growing up as an opponent of a regime that imposed censorship, leaving the country, and moving to a different country where you advocate free speech?

After criticism of this bizarre passage appeared online, the Times edited the passage to read:

Mr. Musk has heralded his purchase of Twitter as a victory for free speech, having criticized the platform for removing posts and banning users. It is unclear what role his childhood — coming up in a time and place in which there was hardly a free exchange of ideas and where government misinformation was used to demonize Black South Africans — may have played in that decision.

This is less inaccurate but also seems to negate the story’s major premise and raise the question of what the reporters were even trying to get at. One of the limitations of the straight-news format is that sometimes reporters have an argument they are trying to make but can only hint at rather than state their thesis directly.

One of the story’s authors tweeted out what appears to be the thesis: South Africa is a case study in free speech run amok:

Photo: @jeligon/Twitter

 

Of course, this premise is plainly refuted by the story’s own reporting, which notes that the government frequently blacked out newspaper stories that cast apartheid in an unfavorable light.

We can see some hints of the argument in a passage later in the story depicting the free-speech ideals of John Stuart Mill as lacking nuance:

Mr. Musk’s current views on free speech seem to reflect the philosophies students were exposed to at Pretoria Boys, said Mr. Beney, the classmate — like that of the English philosopher John Stuart Mill, a champion of unchecked expression.

“I think his ideas about free speech are very classic liberal and not nuanced,” Mr. Beney said of Mr. Musk.

There is absolutely a deep vein of philosophical criticism of Mill and liberalism. On the left, these critiques view support for free speech as inherently naïve about power dynamics within society — if the government adopts neutral standards of free speech, the argument goes, it simply allows the privileged to dominate the oppressed.

But news writers can’t make that case. Instead, they’re left making a series of individual juxtapositions that appear to expose some contradiction between Musk’s background and his ideals but which, in the absence of an explicit argument, are simply incoherent.

You’d be foolish to make a confident prediction about the political reverberations of the apparently imminent reversal of Roe v. Wade. But at the moment, all sides are acting as though the ruling presents a one-sided threat to the Republican party.

Polling on abortion is complex, but at the most basic level, a durable majority of the public opposes a reversal of Roe. Republicans are certainly acting as if they’re afraid of a post-Roe landscape. The party’s relentless messaging about the leaked ruling — focusing obsessively on the act of the leak rather than its contents — betrays a lack of confidence in public opinion.

The Federalist, which is not normally a source of insight into any subject other than the paranoia of the modern right, has a surprisingly lucid column about these risks. The author, Emily Jashinsky, concedes that an important faction of the Trump-era Republican coalition is what she calls “barstool conservatives.”

Unlike the Christian right, which rationalized away Trump’s crude behavior and libertinism, barstool conservatives are attracted to him because of these qualities. These are men who reject manners, moralizing, and, arguably, morals. They are also generally pro-choice.

Jashinsky is honest enough to concede that these voters might be peeled off even as she maintains that the party should be willing to bear the cost. “This, of course, is not to say Republicans should continue squirming on the question of life,” she argues, “This moment demands strength and clarity: Abortion kills a baby. It is wrong. It is a stain on our society. If that alienates ‘Barstool’ voters, so be it.”

One important change wrought by Trump was to bring more secular voters into the party’s coalition. It maintained the balance by promising conservative jurists to the Christian right and held the coalition together because the results those judges would produce remained hypothetical. Now they are about to become real, and the party’s ability to hold together voters with opposing beliefs on questions that had been sublimated will be put to the test.