In a few days, we’ll know if Samuel Alito’s leaked draft in Dobbs v. Jackson Women’s Health Organization will survive as the majority opinion and become the “law of the land.” Whatever happens, Alito’s draft will stand as one of the greatest and most courageous declarations by a Supreme Court Justice. It’s a purifying document, cleansing the Court of many wrongheaded and pretentious rationalizations in the past.
The opinion is prophetic – in the classical sense of the word. We often speak colloquially of prophecy as predicting the future. But in Scripture, prophets were not primarily clairvoyants, although some issued warnings of what might come (Jonah to the people of Nineveh), or statements of God’s great and good things (Isaiah about the coming of the Messiah).
A prophet, then, isn’t a fortune teller, but a truth speaker. He speaks to those enraptured by their own power, so wrapped up in their unchecked will as to commit grave wrongs. So did Nathan speak to David, Elijah challenge Ahab, Esther expose Haman, and John the Baptist condemn Herod. For his part, Alito (“rudely” his critics charge) exposes Harry Blackmun’s hubris in Roe v. Wade who concocted not only a “right” that has no warrant in history or the Constitution, but also an analysis of pregnancy lacking internal logic and bearing little relation to medical reality.
In Scripture, prophets were not known for circumspect language in declaring the truth. Elijah’s words were “as a flaming furnace.” Similarly, Justice Alito has long been noted for his embrace of the facts behind a case, as ugly or distressing as those facts may be.
In Stevens v. United States, for example, as the sole dissenter, Alito described the tortured screams of a kitten being killed in a pornographic crush video, though the majority struck down the congressional act forbidding such videos on First Amendment Grounds.
In Brown v. Entertainment Merchants Association, he wrote of video games in which:
Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown.
The Court struck down a California law that prohibited the sale of such games to minors (Justice Alito concurred only because part of the law was vague.)
And in Snyder v. Phelps, he recoiled against the majority’s shielding those who harassed parents’ burying their fallen son from taunts and signs such as “God Hates You,” “You’re Going to Hell,” “God Hates Fags,” “Semper Fi Fags,” and “Fags Doom Nations.”
More than any other Justice in recent memory – certainly more than Justice Antonin Scalia – Alito condemns the moral harm wrought by unduly rigid judicial reasoning: the moral harm of animal cruelty, of allowing juveniles to impersonate mass murderers, of permitting malicious persons to turn a father’s grief into agony, or, in the case of United States v. Alvarez, of giving a free pass to those stealing the honor of fallen heroes by pretending to be a Medal of Honor holder.
Terming abortion “a profound moral question,” Alito goes again to the root of what the purpose of law is.
In Dobbs, Alito’s tone stems from his umbrage at those of his fellow justices who have forsaken their calling for power, even enshrining such power in solipsistic formulas such as Justice Kennedy’s “mystery passage.”
Alito “makes straight the paths” to the truth by clearing away the false idols that the Court erected to justify the right to kill the innocent, and – thereby – gravely wounding the Court itself, and dividing the nation into bitter factions.
He leaves none of the judicial falsehoods untouched:
• Roe’s discussion of the history of abortion “ranged from the constitutionally irrelevant. . .to the plainly incorrect.” In fact, history shows that abortion has always been treated in the law as some kind of wrong.
• “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
• The plurality opinion in Planned Parenthood v. Casey greatly modified Roe while contradictorily claiming to uphold stare decisis.
• “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
• Instead of ending the dispute, as the Court self-righteously claimed, it has “inflamed” the issue and made it ever more “bitterly divisive.”
• There is no equal-protection right to an abortion, for the regulation of abortion is not a sex-based classification.
• The rules of stare decisis do not weigh in favor of keeping this deeply flawed precedent.
• The viability is indeterminate, and “has nothing to do with the status of a fetus.”
• The critical question to be addressed by legislatures is whether an unborn human being is at stake. No precedents cited by opponents meet this question.
Justice Alito has winnowed the precedents and has thrown away the chaff. But a prophet is not a ruler, and a judge is not a legislator. It’s not his calling, he believes, to cross over to a promised land where unborn life is protected by law. His sense of vocation compels him to stay on his side of the water, but he points the way for the States and for the people.
Legislatures, he declares, need meet only a rational test to protect those moral goods that are simply common sense:
respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.
If Alito’s draft opinion becomes law, how will Americans respond to the Justice’s invitation? Some assuredly will do as David did to Nathan: listen to him. Others, like Herod, will seek to cut off the prophet’s head.
*Image: St. John the Baptist Preaching by Pieter Brueghel the Younger, 1601 [Rheinisches Landesmuseum, Bonn, Germany]
You may also enjoy:
Hadley Arkes’ On the Consummate Statecraft of Samuel Alito
Walt Whitman’s Over the Carnage Rose Prophetic a Voice