For a long time, the judges have sought to portray themselves as a collegial group that respects principled disagreements on major issues. The decision and the additional opinions show how far this is from reality.
The Supreme Court likes to present itself as a collegiate body
The court likes to project a public image of itself as a place where great minds respect each other, even when they disagree. Even though the modern court has seen more dissent, including sometimes critical or even acerbic dissent, many dissenting opinions explicitly express respect for the majority. Justices Ruth Bader Ginsburg and Antonin Scalia (who had a reputation for wielding an acid pen in dissent) were politically distant from each other, but spoke of their close friendship. Even as the nation became increasingly polarized and politics grew more resentful, Ginsburg promoted court civility as a model and praised his new Trump-appointed colleagues after serving with them.
In January, respected Supreme Court reporter Nina Totenberg reported that Justice Sonia Sotomayor was participating in court business remotely because Justice Neil M. Gorsuch had refused to wear a mask. The court quickly released a joint statement from the judges denying any conflict and saying they were “warm colleagues and friends”.
In many states with anti-abortion laws, majorities support abortion rights
This is not visible in the majority opinion of the court
There is little collegiality in Alito’s majority opinion when discussing the reasoning of the dissenting minority of judges. In various places, the Alito majority describes dissent as “professing[ing] fidelity to stare decisis”, “failure[ing] to seriously engage with… an important precedent” and “attempt[ing] to hide this failure. The majority opinion claims that the dissent offers “vague language” that “imposes no clear restrictions on … the exercise of ‘raw judicial power’. He criticizes dissent for ignoring states’ interest in fetal life, saying that “perhaps it is designed to stir up unfounded fear”, and concludes that dissenters simply dismiss the destruction of potential life as entirely meaningless.
The tone of the majority criticism is as harsh as its substance. He describes roe deer, which the dissent argues, as “grossly flawed” and “profoundly prejudicial”, with “a constitutional analysis … well outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed”. Indeed, the majority opinion uses the expression “manifestly false” seven times. The majority, responding to the dissent’s accusation that the majority has abandoned stare decisis, irritably retorts that “we have done no such thing, and it is dissent’s understanding…that breaks with the tradition”. He also rails against Chief Justice John G. Roberts Jr.’s agreement, saying its “most fundamental flaw is its failure to offer a principled basis for its approach.”
This harsh language prompted Judge Brett M. Kavanaugh to draft a separate agreement specifically distancing himself from it. While agreeing with the outcome and the court’s reversal of its earlier decisions in roe deer and Casey, he described the interests of both sides of the abortion debate as “extraordinarily important”. Kavanaugh also claimed, “I have deep and unyielding respect for the judges who wrote the Casey plurality opinion. And I respect the Casey the good faith effort of the plurality to find common ground or compromise. Kavanaugh concludes by praising “all judges, past and present, who…have tackled the controversial issue of abortion” and emphasizing his belief in their “good faith,” “prudent deliberation,” and “sincere understanding of the Constitution.” and the previous one”.
Roe is gone. How will state abortion laws affect IVF and more?
Dissent is also strongly worded
The dissent, co-authored by Justices Stephen G. Breyer, Elena Kagan and Sotomayor, minces few words but mostly strikes a tone of deep concern or even alarm about the implications of the majority’s decision. Probably the harshest attack on the majority comes from page 5, where the dissenters claim, “Either the majority doesn’t really believe its own reasoning. Or if so, all rights that don’t have a history dating back to the mid-19th century are precarious. Either the mass of majority opinion is hypocrisy or additional constitutional rights are threatened. It’s one or the other. The dissidents developed this accusation throughout their dissent.
The dissent is sometimes sarcastic, as in footnote 5: “So apparently the Fourteenth Amendment could protect things that were totally unknown in the 19th century; maybe one day there might be constitutional protection for, oh, time travel. But for everything that was known at the time (like abortion or contraception), no luck. But for the most part, dissenters describe the damage they perceive the ruling will do to women’s equality, reproductive freedom and the court itself. They end, not with respect, but “with sadness” for the court and for “the many millions of American women who today have lost fundamental constitutional protection.”
Notably, the chief justice, usually the most institutional member of the court, is alone in the matter. He only agrees with the judgment and criticizes both the majority and the dissent for their certainty. His advice provides further evidence that he had hoped to work out a compromise that would further reduce roe deer without formally annulling the judgment.
Public reactions to Dobbs have been highly charged, greatly increasing the heat in an already contentious political environment. The opinions expressed by the judges suggest that disagreement and even resentment over it has also undermined standards of collegiality in the court. With a lone leader and a conservative majority in the lead, the court seems more likely to divide than provide an example of unity.
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Julie Novkov (@NovkovJulie) is acting dean of Rockefeller College of Public Affairs and Policy and professor of political science and women’s, gender, and sexuality studies at the University of Albany, where she teaches courses in constitutional law and civil liberties.
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