Tens of millions of people have been snookered into believing that the “draft opinion” “leaked” from the U.S. Supreme Court, was about abortion.
Abortion was the nominal topic. But what Samuel Alito, long-time, hard-core Republican politician, actually wrote is a conservative Manifesto for the take-over and direction of the Federal government. The focus on abortion was both a procedural necessity within the legal system’s need for case specifics, and a tactical maneuver to focus mass attention and outrage away from the main substance of the Manifesto.
The Alito Manifesto is a fascinating exposé of the thinking of the extreme corporate right in today’s U.S. He explicitly lies about the Constitution, and about past legal rulings. He relies on a witch-hanging zealot from the 1600s, while telling us that what the Founding Father’s wrote in their own legal decisions is as irrelevant as the opinions of the public, whom he wants to be governed, not to govern.
On medical issues, Alito says that politicians, rather than doctors and scientists should make scientific decisions. And he says that the Courts must follow the medical dictates of politicians, even when the politicians decide things that are scientifically objectively wrong.
At the end of the Manifesto, Alito states that his own religious faith takes precedence over the religiously disputed arguments about when life begins. Not surprisingly, Alito’s view explicitly contradicts both the ancient bible, and modern science.
Those are some high points of his abortion argument. But please remember that they are offered solely to distract from what the Manifesto is really saying.
A Manifesto is a political document, a statement of a party’s aims and plans, and of course, of who the party is. The Alito Manifesto starts out stating clearly that it is not your old Republican Party, but rather a new, much further right group. As he progresses through the Manifesto, Alito makes clear that the new Party adopts its orange spiritual leader’s disdain for truth and willingness to lie to justify its positions.
You can tell that it’s a political document, rather than a legal opinion from the language. Judges try to sound scholarly, talking about precedents and “distinguishing” one thing from another. But Alito goes full political attack mode, saying that Roe v. Wade was “egregiously wrong from the start. It’s reasoning was exceptionally weak, and the decisions has had damaging consequences.” (@ p.6)
Roe v. Wade was a 7-2 decision. Of the 7 justices who voted for a woman’s right of privacy, FIVE (5) were appointed by Republican Presidents. Three were appointed by that well-know radical leftist Richard Nixon. Two were appointed by Dwight Eisenhower. Samuel Alito wants to be politically clear that the new Trumpista Party is entirely separate from that old fashioned style of Republican thinking, with its “exceptionally weak” reasoning.
Further into the opinion, Alito lists the errors of the former Republican justices: “the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.” (@ p.39)
Then Alito make clear what he thinks of the what the Founding Fathers created. He says that the Constitution does not expressly grant a right to abortion. And he criticizes the Roe v. Wade opinion for finding a right of privacy: “And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” (@ p.8)
But he does admit that past Supreme Court decisions actually followed what the Founding Fathers had written: “Constitutional analysis must begin with “the language of the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186-189 (1824)” (@ p.8) And what the Founding Fathers actually wrote, and stuck into their new Constitution, in 1789, just two years after the Constitution was written, was: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (9th Amendment) Notice that it says “the people” NOT “the states.” The very next amendment, #10 says that powers (not rights) not given to the Federal government are retained by “the states, respectively, or to the people.”
The men who wrote that 9th Amendment were mostly the same men who had written the Constitution only two years earlier. And the language they used was the same language they had used two years earlier. They knew what they meant when the wrote about “rights” and “powers” and “people” and “states.”
They clearly stated that there were “rights” that were retained by “people” that were not enumerated within the Constitution.
The Alito Manifesto announces that this is no longer going to be the law under the Trumpista court. If the Constitution doesn’t expressly mention a right, then the Court will say that any law or case decision that tries to recognize such a right is just wrong. The new regime intends to replace “liberty” with “ordered liberty,” which Alito explains:
“While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.” (@ p.30)
That is, you can think and say what you want about LGBTQ+ rights, or same sex marriage, or school segregation, but you can’t act on such ideas, because they are not explicitly mentioned in the Constitution.
This is where John Roberts gets involved. The corporate “liberal media” proclaims that John Roberts is being “moderate” on this case, and not siding with the Trumpista ‘justices.’ Another canard.
In 1981, as a young lawyer in the Reagan administration, John Roberts wrote a legal memo explaining his tactical theory about how the Republican Party could reverse the Brown v. Board of Education cases, and the 1964 Voting Rights Act. (He didn’t understand that Reagan had worked with Black people for decades, and saw racism as a crowd-pleasing political tactic, but not as something real to strive for - as John Roberts saw it.)
As Chief Justice, John Roberts has worked hard to destroy the Voting Rights Act, and to encourage states to gerrymander to suppress non-white voting. His Objection to the Alito Manifesto is not because he believes there are, as the Constitution states, rights retained by the people, including the right of privacy. Rather, he believes that the Alito Manifesto is too ham-fisted. He thinks that rolling back rights could be done more slowly, more sensitively.
Alito and Roberts are now in a political power struggle to head the Trumpista cohort of the Supreme Court. But they share fundamental beliefs in the inferiority of both Black people and women. They believe that government by the people should be replaced by government of the people, and by elite, oligarchical interests.
Whomever comes out on top in their struggle, the central issue is that the Trumpista super-majority has clearly announced, through the Alito Manifesto, that it is going to work to replace what is actually written into the Constitution with what the Koch brothers, Scafies, Mellons, etc. want to be the rules of government.
The Alito Manifesto is 67 pages long, with another 30 pages of appendices. No pictures. All single spaced. It is a certainty that no alt-whitie will actually read it. But it is full of odious things far beyond what I have quoted above. Consider that Plessy v. Ferguson, which gave us “separate but equal,” doesn’t talk about racial hierarchies. And this is part of John Roberts’ legal approach. He would return us to “separate but equal,” all the while pretending that separate can be equal, and of course that the white power holders would treat non-whites equally.
This is what is so pernicious about the Alito Manifesto, and the Trumpista ‘justices’‘s approach. They use what superficially look like logical, historical, legally supported arguments. But they know that their “base” will never look behind the smoke and mirrors, will never check the facts that Alito has fudged - or simply lied about.
The Manifesto says, repeatedly, that state legislators should be allowed to make medical decisions, even when those decisions contradict settled medical knowledge. And those political-medical decisions should control the lives even of people who believe in actual medicine and science.
One source repeatedly mentioned in the Alito Manifesto is Sir Matthew Hale, an English theologian and judge (d.1676) who presided over witch trials and executions, and argued for the use of capital punishment on children. He wrote that there could be no such thing as “marital rape” since a wife gave herself up to her husband upon marriage and had no legal right to say “no.” Sir Matthew Hale was considered a prime source of legal and theological justification for the Salem Witch Trials in the Massachusetts colony.
Using such an anti-woman, anti-child exemplar for what the Trumpista ‘justices’ want for the U.S. should be as terrifying as anything else in the Alito Manifesto. But please ignore all that, and the rest of what Alito wrote. Focus just on the anti-abortion language, and don’t worry at all that there is a six-vote super-majority on the United States Supreme Court committed to gutting our Constitution and all the individual rights it conveys.