Alito’s Horrifying Opinion

1. The only really important point in this post.

It is crucial to remember that this disgusting diatribe is the real opinion of Alito and his co-conspirators. They intend to force you to submit to this power grab and all the sickening changes it makes in our democracy. To them the opinions, the morals, and the sense of civic virtue of the vast majority of Americans are meaningless. Only they and their tiny minority are right.

The formal opinion may be substantially different in form, maybe even to some extent in substance, but this is the unvarnished opinion of Alito, Thomas, Gorsuch, Barrett and possibly Roberts. Do not be fooled by a milder version of this screed. Do not forget they will happily hand you over to the Red State version of the Inquisition.

2. Alito is a bad judge.

Alito’s draft is an attack on judging as a human intellectual activity. It’s an assault on the very nature of good judging. In the less important part of this post, nearly unimportant, I explain my thinking on this point.

Here’s a summary of Alito’s opinion, selected sentences from the beginning of the opinion.

1. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions (my numbering and paragraphing).

2. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish.

3.The Con­stitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, in­cluding the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s his­tory and tradition” and “implicit in the concept of ordered liberty.”

4. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Therefore they reverse Roe v. Wade and while they’re at it, they reverse Casey v. Planned Parenthood; and say that the standard for review of a state law concerning abortion is whether there is a rational basis for the law.

Here’s a summary by Jeanne Suk Gerson in the New Yorker, laying out the general form of the argument.

Let’s begin with this question: at this time two years was there a Constitutional right to an abortion as set out in Roe and Casey? The answer is clearly yes. The proof is that courts enforced it, and people complied. It can’t possibly be that Alito’s decision, in whatever form it is finally rendered, makes it so that there was never a Constitutional right to an abortion. The Constitution is what five people say it is. The majority in Roe and Casey both said there is a Constitutional right to an abortion, and so it was.

Lots of SCOTUS cases are wrong at least to a large number of people. Why is it necessary to overrule this one? Why not leave it in place, even if Alito and his allies don’t like the reasoning. Alito doesn’t address that question. Stare decisis and reliance on precedent are crucial elements in judging. They give stability to our law.

Consider, for example, Plessy v. Ferguson and Brown v. Board of Education. In overruling Plessy, the Brown Court found that separate schools for White and Black kids seriously damaged Black citizens in ways that didn’t exist at the time Plessy was decided. Changes in society were so great that separate was inherently unequal by the time of Brown. Therefore it was necessary to overrule it.

How does Alito explain why Roe should be reversed? This is all I can find:

Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Overturning Roe will also have terribly damaging consequences. A good judge would address this plain fact.

One possible answer is that Alito is a true believer in originalism, a theory created by conservatives to combat the Warren Court’s “liberal” decisions. He believes that there is a True Constitution from which all law springs. That law is encapsulated in the public meaning of the words in the Constitution as they were understood at the time of adoption. Alito and his colleagues are guardians of that True Constitution, and it’s their sworn duty to insure that it is not distorted by bad cases. Using that theory, Alito can and must speak truth about the Constitution, regardless of the consequences. As he puts it:

The Casey plurality was certainly right that it is important for the public to perceive that our deci­sions are based on principle, and we should make every ef­fort to achieve that objective by issuing opinions that care­fully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision.

“Proper understanding”? Concerns about “the public’s reaction”? His “work”? For Alito judging isn’t about people, or society. Real judges don’t act like that. Let’s see what traditional jurisprudence says about judging.

In a paper titled Logical Method and Law (1924) the American pragmatist philosopher John Dewey describes good judging. He quotes Oliver Wendell Holmes from a paper on agency law in The Collected Legal Papers, p. 50.

… the whole outline of the law is the resultant of a conflict at every point between logic and good sense — the one striving to work fiction out to consistent results, the other restraining and at last overcoming that effort when the results are too manifestly unjust.

Dewey’s pragmatic theory is that the act of thinking only occurs in the face of doubt. At that point we are forced to proceed to inquiry. Over centuries of trial and error that continue to the present, we human beings have developed ways of investigating and collecting information, evaluating it, checking and rechecking, and ultimately forming conclusions. Then we observe the results and make adjustments to achieve our goals in the best way possible, knowing that we cannot be sure we are right. This method, more fully developed in other writings, applies to solving the problems presented to judges.

I read Dewey to say that judges should start with inquiry, and collect the facts in the messy circumstances of the case before them. As they do so they reach tentative conclusions about the best solution to the problem presented. Then they consider the general legal principles which might act premises for forming a conclusion that will be best for the case in front of them. He thinks inquiry is a logic of consequences, not antecedents. Once the consequences become reasonably clear, it is possible to consider relevant general principles. The selection of the relevant premises becomes crucial only at that point. We’ll see that when we see the dissents which we can expect from three members of the Court.

Then the judge writes down an explanation based on the general principles and tries to justify the decision. This logic is different from the logic of inquiry and the formation of conclusions. It is designed to appear as impersonal as possible while being persuasive. That’s why formal syllogistic logic is the model for many opinions. It conceals the messy process of inquiry, and it hides the uncertainty which has to exist in all really hard cases.

To see how Dewey’s thinking works in practice I turn to a modern thinker and appellate judge, Richard A. Posner. In a paper titled Pragmatic Adjudication Posner writes

But if his definition is rewritten as follows-“a pragmatist judge always tries to do the best he can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past” — then I can accept it as a working definition of the concept of pragmatic adjudication.

He explains that the function of precedent is to provide the current judge with information and principles that might be helpful in deciding the current case. The point is that precedent does not supply Judges with a single answer to the determination of the proper rule to govern the case before them. Judges should consider sources that help understand the wisdom of the possible rules. The role of the judge is to end the fiction when it conflicts with good sense.

That’s what Alito doesn’t do. In this opinion, the question is whether Roe and Casey should be reversed. But Alito doesn’t explain why overruling Roe and Casey is better than leaving them in place even though the reasoning in his view is flawed.

Let’s grant for the sake of argument that Roe “had damaging consequences”, which Alito asserts as a fact with no evidence. It also caused heart-burstingly wonderful outcomes for millions of living women and their families. Why doesn’t Alito consider that benefit? He doesn’t explain why reversing Roe and Casey is the best outcome for the present and the future; in fact he says that isn’t relevant.

In my jurisprudence, he would at least address it. In his, it’s irrelevant, trivial, meaningless. For me and the majority of Americans, Alito’s originalist fiction imposes an unjust outcome with no explanation. It can only be a political act, an act of power.

Here are a few of the essays I read on the draft opinion.

Rebecca Traister

Ian Milheiser

Alex Parene

Jessica Valenti

Molly Crabtree

Zachary Carter

Melissa Murray and Leah Litman

Barry Friedman,Dahlia Lithwick, and Stephen I. Vladeck

78 replies
  1. d4v1d says:

    Adrienne LaFrance in The Atlantic says this will make women less free (i would say unfree) – and that this all boils down to Great Replacement Theory, as five Supreme Court Injustices seem to think this will magically create white babies.

    • Rayne says:

      My daughter is now absolutely terrified of getting pregnant because she can’t be certain she wouldn’t have an ectopic pregnancy or experience other complications for which the only treatment to save the mother would be an abortion. She can’t be certain if she was traveling on business that the state in which she was working would treat her as her own home state — and she’ll be traveling this month for work to one of the states which has ratcheted up its anti-abortion/anti-contraception legislation. She can’t even be certain her birth control would be legal depending on the state to which she may travel on business before the end of the year.

      There will be even fewer white babies because of this debacle. (Don’t even get me started on fewer healthy white babies considering the damage COVID does to pregnant women, fetuses, and men’s reproductive organs.)

      • So so says:

        And, yet, the frothy RW is saying that abortion advocates are hypocrites because they are ‘pro-black’, and have allowed for “millions of murdered black babies”. I am still trying to figure out how this jibes with their ‘Democrats support open borders to increase Democratic votes”.

        [Welcome back to emptywheel. I’m sure this is just a typo situation but your username on this comment doesn’t match the name “Sonso” you have used on 174 previous comments. Please revert to your earlier name in future comments so community members recognize you. Thanks. /~Rayne]

        • Rayne says:

          The fascist right-wing doesn’t need to be logical or internally consistent. They only need to use the emotional cudgel which will demonize the left and propel their authoritarian fear-driven base to the polls.

          They’re also racist as fuck. The message about Democrats and open borders is aimed at their base to scare them about more BIPOC people coming into this country. The message about hypocrisy is aimed at the left because the left is aware of and sensitive to hypocrisy which the right-wing base doesn’t give a shit about. If the fascist right-wing actually gave a shit about hypocrisy related to increased deaths among Black youth, they’d do something about gun control.

  2. Peterr says:

    Prior to becoming a member of SCOTUS, Alito was on the 3rd Circuit Court of Appeals. This was the court that heard the initial appeal of Planned Parenthood v Casey, and Alito wrote a separate opinion agreeing in part and dissenting in part from the majority opinion of the 3rd Circuit.

    Reading his opinion, one cannot help but get the feeling that he has serious issues with women, especially women with power. He personalizes his critique on Sandra Day O’Connor, and despite clear SCOTUS language to the contrary, he seemed to want husbands to have a veto on whether a woman might obtain an abortion.

    My gut says that Alito is pouring out years of frustration at having to serve alongside RBG, and crafted this to be as complete a rejection of everything she stood for as possible. Should this draft be essentially what becomes the majority opinion, the dissents from Sotomayor, Kagan, and Breyer should be equally epic.

    • Rayne says:

      We’ve known he had a problem with women as well as minorities since his nomination to SCOTUS because of his relationship to the Concerned Alumni of Princeton which wanted to favor men over women in admissions. Alito should never have been nominated let alone approved as a justice.

  3. !? says:

    How does this draft fit into Alito’s oeuvre? Is he consistent with his past, or is he writing for his legacy?

  4. earofhuntingdon says:

    A court cannot separate factual inquiry from the law, because that inquiry determines whether a given precedent applies – the facts before it match those of a precedent – or whether the facts are so dissimilar it would work an injustice to the parties before the court and to those that follow to use it as a guide.

    Injustice Alito, however, does not need facts: he has his conclusions. In fact, they would work against his purpose, which is to do what he and his radical right wing brethren were appointed to do: to reverse and invalidate Roe and its progeny. His decision is as brazen an example of raw power as the decision in Bush v. Gore.

    That millions of American women, their families, friends and fellow citizens relied on that precedent is irrelevant. So, too, are the consequences to the parties involved in this case. For Alito and his majority, the law and legal argument – as ACB has long argued – are the means through which they do God’s work. That’s the work of a zealot, not a judge.

    • earlofhuntingdon says:

      Alito, like his radical brethren, are equal opportunity opportunists. They will adopt any argument that promotes their ends: maximum dominance for white males, maximum submission for all others, especially women, people of color, and those who would upset the status quo they seek to impose. They reject modernity entirely.

      ACB argues, for example, that all fertilized eggs, if not sperm*, are sacred because, in part, they are meant to feed the free market. It sounds like parody until it’s taken apart. For one thing, she means the right babies that the right white heterosexual couples want to adopt. If that were not so, the right would not vehemently reject the needs of most children as an illegitimate drag on the resources of truly important people.

      ACB’s argument is also a weak attempt to dress a radical anti-modernist ideology in neoliberal sheep’s clothing. Contra ACB and her ilk, life does not begin at conception. Egg and sperm are living organisms before they become another living organism, a fertilized egg. The issue is whether the latter’s potential to become a human being automatically overwhelms those of already human beings, when, and who decides that based on what factual circumstances. For Alito and ACB, the answer is always the right kind of white men, never the handmaidens who bear children.

      Alito avoids that discussion and assumes whatever facts he wants, regardless of whether they are part of the case before him, to reach his predetermined conclusion.


      • civil says:

        I agree with most of what you’ve said. However, although unfertilized eggs and sperm are alive, they are not organisms. Single cells are only organisms in single-celled species. For one or more cells to constitute a single organism, it/they must be capable of organismal homeostasis (e.g., in warm-blooded species, the group of cells must be able to maintain a temperature that keeps the organism alive), not just cellular homeostasis (e.g., actions within the cell that maintain the internal physical and chemical conditions).

        A lot of people who oppose abortion argue that a zygote is an organism because it has distinct diploid DNA, but a human zygote can only maintain homeostasis outside the body for a few cell divisions, and then only with support from IVF technology. I’d say that it’s only at viability that a fetus might reasonably be considered an organism in its own right, and distinct DNA is not the defining factor. Even then, one could argue that it’s not an organism until birth, since the woman’s body is still taking care of some of the organismal homeostasis. Nor is “human organism” a synonym for “person” (e.g., conjoined twins after birth are a single organism but two people, genetic chimeras have distinct DNA in parts of their body but are a single person). For me, a brain capable of thought is the most important aspect of personhood, which is why I’m comfortable with beating-heart organ donation after brain death: the person in that living body has already died.

        If scientific views on some of this interests you, here’s a useful discussion by the developmental biologist Scott Gilbert:
        Although I haven’t found online copies, he’s also written other relevant works, including:
        Gilbert, S. F., 2008. When “personhood” begins in the embryo: avoiding a syllabus of errors. Birth Defects Res C Embryo Today, 84: 164-173), and
        Gilbert, S. F. 2002. Genetic determinism: The battle between scientific data and social image in contemporary developmental biology. In On Human Nature. Anthropological, Biological, and Philosophical Foundations. (Grunwald, A., Gutmann, M., and Neumann-Held, E. M., eds.) Springer-Verlag, NY. pp. 121-140).

        [bmaz and Rayne: if my comment is too long, please crop. I try not to make my comments too long, but the science is not easily discussed in a single paragraph.]

        • earlofhuntingdon says:

          My point is that the science, which Roe and its progeny labored over, is irrelevant to this Court’s majority.

          Conception is not relevant as a biological event, but because it is the earliest point in time at which the state can interfere. Because, outside of the laboratory, the moment of fertilization is unknowable, the specter of criminal liability would haunt every girl and woman during the prime of their lives. But, heavens, don’t let the state make them wear a mask during a pandemic, because Liberty!

        • rip says:

          Appreciate your comment very much, civil.

          Your definition of viability mirrors much of what human history has used as a definition of sustainable life and personhood.

          Unfortunately the people that are fomenting the crusade against rational thinking are not interested in looking at real history or real science. They have agendas that are aimed at privatizing all decisions of life and death.

  5. Scott Johnson says:

    “Originialism” is essentially an argument that incorporates what I call the Zeroeth Amendment. The Zeroeth Amendment does not exist in fact, and many parts of it were openly opposed by the Founders, but the modern conservatism treats it as an axiom:
    The Zeroeth Amendment, roughly, is thus:

    The United States of America is a nation of white Christian men, particularly those of means, and these shall enjoy unchallenged political power, and all others shall exist at their suffrage. This Amendment shall be superior to all other parts of this Constitution, and all other Amendments thereof.

    “Originalism”, then, is little more a claim that any laws which purport to alter the power arrangements in place in the 18th century, in which the franchise was strictly limited, women had few rights, and chattel slavery still existed, is on its face invalid. Even, in some quarters, various amendments to the Constitution (Justice Barrett has been known to entertain theories suggesting that since ratification of the Reconstruction Amendments was essentially forced upon the rebelling Confederate states, that the are null and void). That heads reactionaries win, tails liberals lose.
    Hopefully this has woken a bunch of people up, and the Dems will be forgiven the sin of $5 gas in November,

    • rip says:

      Well, yeah. Of course.

      Your “Zeroeth Amendment” implicitly includes that the sentient things addressed by the constitution were not only white males, but instances of the human type – specifically homo sapiens with 26 chromosomes, etc.

      Of course these founding fathers didn’t know about species or chromosome counts. Or genetic mutations or current science such as CRISPR.

      Determining the future of society from a very limited judicial perch with mainly trained monkeys, following orders from plutocratic corporate-oriented backers, is going to end up with a very big mess – one they haven’t even thought about.

  6. Fran of the North says:


    Thanks for this elucidating analysis for us ‘non-lawyers’. Folks like me can abhorrently oppose this opinion for gut-check reasons like common decency and social good. What needs more clarification for those non-lawyers are the legal principals that under-gird (or NOT as in this case) these decisions.

  7. civil says:

    I haven’t read the entirety of Alito’s draft opinion. But one gaping absence in the parts that I’ve read is any acknowledgement of the disparity in rights and power between men and women throughout US history, and the impact of that on historic facts he draws on. As Joyce White Vance noted, “Saying women shouldn’t have rights today b/c it wasn’t custom & history in this country for men to grant [rights] to [women] may not turn be the compelling argument he thinks it is.” Even if an embryo were a person (which it clearly isn’t legally, and I would argue not morally either), in no other circumstance do we demand that one person donate the use of some of their organs to save another’s life, much less that the person do this for month’s on end.

    • Ed Walker says:

      You didn’t miss it. It’s not there. And this is just one of many foul aspects of the history he gives.

    • dude says:

      “…in no other circumstance do we demand that one person donate the use of some of their organs to save another’s life, much less that the person do this for month’s on end.”

      I have never heard it put that way before. I think that is a very provocative way to think about the issue.

      • gmoke says:

        I await the case where a woman who was denied an abortion sues the state and her fetus for involuntary servitude.

      • civil says:

        I’ve spent a lot of time debating anti-choice conservatives elsewhere, and it’s a counter to “the baby is an innocent life that must be saved.” I donate blood/platelets, am registered with the National Bone Marrow Donor Program (, and was assessed as a living liver donor. I am very aware that people die while waiting for a donor, yet no one can require that I even donate blood to save them. An embryo/fetus is not just inside a woman, it’s attached and getting oxygen via her respiratory and circulatory systems, getting nutrition via her gastrointestinal and circulatory systems, etc. Pregnancy puts a tremendous stress on a woman’s body, and women still die of pregnancy-related complications. I’ve never gotten a solid rebuttal to my point; mostly those who are anti-abortion deflect to something else.

  8. Savage Librarian says:

    Well, it looks like Alito & his thugs are right on Q as they march everyone straight to hell. As Margaret Atwood says, “Enforced childbirth is slavery.”

    Apparently Sammy, Clarence, Neil, Brett, Amy and John don’t mind stirring up years of civil unrest. History does not bode well for them. Here’s some music to help them get used to what’s in store. I’m sure there will be plenty more to follow:

    “Leslie Gore – You Don’t Own Me”

          • civil says:

            “A person close to the court’s most conservative members said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now” (

            Roberts may not agree that it should be left to the states, but if this leak is correct, then he’s willing to toss viability as the dividing line, with a significant decrease in how much time a woman has to make a decision and to arrange for / obtain an abortion if that’s her choice.

            • bmaz says:

              Oh, I think that “leak” is probably true. That’s been the word in conservative legal circles for quite a while now. And, for the record, what Roberts wanted to do is NOT a “moderate” middle of the road decision, it would have been an abomination. Will give him an ounce of credit for not joining the Alito gang though.

      • Savage Librarian says:

        Even hypothetically, if Roberts had a connection to the leak in hopes of persuading Kavanaugh (or, in a long shot, influencing other more radical minds), to a more reasonable conclusion, I still think the Roberts’ court may not elicit a very favorable place in history.

        Maybe you can recommend a better article, but this one gave me some insight into the responsibilities of the “Chief.” I imagine there is a certain portion of the populace that thinks he could have done some things better.

        “The Role of Chief Justice”| American Civil Liberties Union

        • P J Evans says:

          Spouse-of-friend thought Roberts, at confirmation, had the makings of a great Chief Justice. I argued that he wouldn’t be. Spouse-of-friend is also a very unreliable source, thinks he’s liberal but argues from conservative positions, and assumes knowledge he doesn’t have (apparently thinking acquisition by osmosis in childhood is superior to actual classes in adulthood).

          • darms says:

            “Balls & strikes” my ass – I knew that was b.s. at Robert’s confirmation and he’s proved that time & time again…

  9. Dutch Louis says:

    Wrong time, wrong place. Looking at his way of reasoning and the damaging consequences of the intended decision mr. Alito surely would be a Happy Man in 16th Century Spain or Taliban Afghanistan.

  10. Rapier says:

    One should ask self declared pro life people why they are not ecstatic that since they started their quest to save fetuses from abortion in the US that the world population has near doubled to almost 8 billion. That would be 8 billion souls in their parlance. Why are they not celebrating? I mean really, look at this graph. Wow. Life has won baby.×566.png

    Obviously we know the answer. They want the right kind of people. For all practical purposes most of those 8 billion are not fully people, or souls in their parlance. I mean really, ask any pro lifer if they are happy that the population of Africa has risen by about 1 billion, or 700 million more Chinese since Roe v Wade.

    I’m not kidding. Ask, and not just to play games. Try to make people examine how they think and feel about ‘life’. Keep in mind 70% of Americans are likely to give you the finger and tell you to fuck off. So it has always been.

  11. Bay State Librul says:

    Not bad from MoDo

    “Samuel Alito’s antediluvian draft opinion is the Puritans’ greatest victory since they expelled Roger Williams from the Massachusetts Bay Colony.” Maureen Dowd

    Born in the Witch City, my hometown finally made it to the Supreme Court.

    The duplicity of Sam Alito!

    • Troutwaxer says:

      I would say it goes further than that. The Salem Witch Trials are one of the most unjust events of U.S. colonial history. When you think about injustice in the U.S., particularly as involves the courts or law enforcement, the Salem Witch Trials are in the top ten. If your focus is particularly on religious history, it might be the very most unjust event ever (in U.S.). But regardless of where you place it, the Salem Witch Trials are canonical, for Americans, as an unjust event for which we feel intense guilt/shame when we look back at our history.

      So when Alito quotes a Protestant trier of witches, who allowed “spectral evidence” against witches (that is, evidence produced by visions or dreams) to be both presented in court and considered by the jury he’s doing more than trying to find a convenient source of judicial quotes. He’s trying to rewrite the cultural basis of the U.S. It’s the equivalent, in it’s cultural significance, of trying to enforce, from the bench, the idea that keeping Blacks as slaves is good, or that Jews should be sent to concentration camps. It’s not merely insane, it’s a deliberate and monstrous attempt to write witch-hunting, spectral-evidence-allowing, pro-rape madness into our judicial history, where it can be used as a basis for further court decisions.

      That’s what Alito is up to. Not merely destroying Roe V. Wade, but rewriting U.S. History and culture to tell us that the Salem Witch Trials were just, that spectral evidence is useful in court and marital rape is legal. Alito’s draft is like a rotten onion – layer after layer of filth, all gradually being peeled away to reveal a core of nightmarish insanity.

      • Ginevra diBenci says:

        No, no, no. Alito’s opinion is not about the witch trials, however much I appreciate Lawrence O’Donnell exposing certain historical truths about the Coke citation.

        These are Catholic judges whose religious beliefs have been weaponized, cultivated by very rich donors who couldn’t care less about abortion but wish to maintain a stranglehold on the Republican minority-rulers that deliver them financial blessings. For years this team has ginned up and exploited the “pro-life” base that voted them into the power they used to rig our financial systems.

        What the puppet masters wanted: an asymptotic pursuit in which overturning Roe came ever closer but never got fully accomplished, else why keep using that chase to rally voter turnout?

        What they got: what their public-facing representatives said they wanted. It makes sense they’ve gone silent–the lapdogs’ mouths are full of that car they finally caught.

        • Troutwaxer says:

          I don’ think you understood me terribly well, so let me clarify. Alito’s opinion is not about the witch trials. It’s about abortion. But Alito is also an intelligent person who’s capable of doing more than one thing at once!

          What I’m saying is that Alito, in using Matthew Hale’s reasoning to attack abortion rights and mentioning him by name, is trying to do something else, in addition to attacking abortion, and that’s to allow some very ugly types of medieval thinking to be considered in modern, American jurisprudence, because burning witches, starting with Hillary, is very much on the right’s agenda!

          In short, Alito has not lost sight of the real prize – total theological dominion, based on the worst kind of medieval thinking, of our entire country.

          • madwand says:

            Yeah a total theological dominion with a certainty of belief in “End Times” along with nuclear weapons, sounds great doesn’t it?

          • Ginevra diBenci says:

            Troutwaxer, I believe I understood you. We may disagree about Alito’s intelligence; he strikes me as a mediocre mind and worse writer, but that’s relative to other judges across the country whose opinions I’ve read. All are capable of juggling several aims better than he does.

            Alito may have theocracy as his personal Grail, but he was put on the Court by those in service to the oligarchy. (I’ll grease your palm, you’ll grease mine.) Leonard Leo, pulling all the strings in the middle, holds many end (times) goals in mind at once; “feed them witches” does indeed work as a strategy, which is why they incorporate it, but I don’t believe we should be chasing that demonized rabbit down the hole.

            That’s what they want us to do.

        • Krisy Gosney says:

          Yes, thanks for making this point. I think the abortion as weapon is the umbrella above all the umbrellas. I read somewhere, something like, ‘the ultra-rich are holding the gun and the gun is abortion.’ One of the reasons why, as a married lesbian with a newborn, I’m kinda scared shitless right now. When abortion is gone as a voter turner-out/voter control issue, these ultra-rich will manufacture me and my family as the next ‘abortion.’ It’s not going to be contraception too yes they will manufacture that as a voter control issue, gay marriage is the next most powerful motive for voter control (in my scared shitless opinion).

  12. Super Nintendo Chalmers says:

    The original meaning of the 2nd Amendment was there was no individual right to bear arms. IF he and the regressives were true originalists they would have upheld the DC gun law in Heller. Alito is full of shit about originalism.

    • jhinx says:

      One of my favorite Alitoisms: In his opinion on some voter suppression law (paraphrasing): Just because the law creates unequal access to voting, doesn’t mean it creates unequal access to voting.

    • Sue 'em Queequeg says:

      Yes! Perhaps the search for historical appearances of the phrase “a militia of one” didn’t go so well.

  13. Ddub says:

    If there is any positive IMO it is that the end battle is joined. The Christian Nation freak show has made it to town and the Corporate Interests and the US Oligarchy is fine with it as long as it doesn’t hinder Business.
    But this ruling will hinder business in many seen and unseen ways. Gov. Abbott’s most recent stunt at the border costing my State 4B and Desantis’ Disney charade must be giving boardrooms second thoughts about which party is Best For Business.
    I am struck by how recent events have brought into stark relief the overarching fight for human freedom and dignity. By Putin’s invading Ukraine, he has discredited Trump and a major segment of the new GOP. And the GOP’s embrace of toxic Christianity has led to the upcoming SC decision on Roe. And there’s no obfuscation possible when No Exceptions is the dominant strain.
    The masks are off.

  14. Rollo T says:

    Who decides is key. Given the Republican surge in control of state government, Alito wants to vest the decision making process in the entities where Republicans have power. But the logic of that thinking is preposterous. There is not a sufficient nexus between a pregnant woman and a state government. An entire state (Blue or Red) cannot account for the individual nature of the abortion decision. Using Alito’s logic, why not move the decision to the county level? The city level? The neighborhood level? The household level? No, not even that would work. The ONLY level for this decision making is with the individual. No other person in a house, neighborhood, city or state should be given the power of that decision.

    • DLup says:

      For Republicans, the proper political level for decisions is that which yields the desired policy outcome most easily and permanently. Recent examples of preemption of cities by state governments include living wages and mask and vaccine mandates.

  15. earlofhuntingdon says:

    Samuel Alito is imposing another unconstitutional and ahistorical travesty on US law, politics, and culture. In seeking to avoid the religious wars that rocked Europe for centuries, the American Constitution mandates that the state not discriminate against any religion. The state must apply its rules equally to religious and non-religious actors alike.

    Alito and his brethren would turn that rule on its head – and undo the civil peace the Constitution seeks to enable. They argue that the only way to avoid religious discrimination is to actively prefer religious interests over all others. In practice, they further eviscerate the Constitution by applying that preference only to favored forms of “deeply rooted” American Christianity, which leaves out a few other religions.

    The logic is painfully self-serving, but it has parallels. It is akin to that adopted by white men, who argue that any policy that seeks to redress past wrongs illegitimately discriminates against them. Or white incels who argue that enforcing the rights of women is what makes it hard for them to get laid. Another parallel comes from international trade agreements, written largely by multinational companies. These argue that any state action that regulates business – for example, to protect consumers, labor, or the environment – is an impermissible taking of their expected profits, for which the state must pay compensation.

    • P J Evans says:

      They’re ignoring the really deeply-rooted religious tradition of Unitarianism/Deism, and applying their own far-less-deeply-rooted tradition of conservative Catholicism. (Do these guys go to Tridentine masses? Are they sedevacantists?)

  16. Jenny says:

    Kristin Du Mez: How Evangelicals Corrupted a Faith

    The likely demise of Roe v. Wade has galvanized America’s evangelicals. Who exactly are they? And how do they influence politics? Kristin Du Mez is a professor and historian of American Christianity. Her book “Jesus and John Wayne” takes a look at 75 years of white evangelicalism. Du Mez says she believes the Christian right is undermining democracy and fracturing the country.

    • madwand says:

      We should not dismiss Du Mez or others like her such as Anne Nelson Katherine Stewart and Andrew Seidel. They warn us of a danger, a wake-up call, but will we wake up.

  17. gmoke says:

    Stare decisis is dead. We now live with a Supreme Court that has embraced authoritarian anarchy (and I mean anarchy in the pejorative sense of “without law” not as a political philosophy of such as Kropotkin and Proudhon). Whatever they say is the law is the law and it can changed from day to day, as it seems to have done with, for instance, decisions on when reapportionment comes too close to primary or election day to change voting districts.

    • earlofhuntingdon says:

      Paraphrasing Faulkner, it’s not dead, it’s not even the past. Lower courts must still honor it.

      • gmoke says:

        At the Supreme Court, stare decisis is dead if/when this decision is handed down. At that point the Roberts Court becomes the Aleister Crowley Court where “do what thou wilt shall be the whole of the law.”

        And the lower courts will all fall into line.

  18. dadidoc1 says:

    Justice Alito’s opinion while stunning and harsh, seems poorly crafted and poorly argued. I’d expect something like this from a new law graduate from a third tier law school. I’m left feeling that he isn’t that intelligent, certainly not as intelligent as he thinks. Just a Federalist Society hack.

    • earlofhuntingdon says:

      Alito is displaying his arrogance, laziness, and misogyny. He hasn’t bothered to craft a tight, logical, supported opinion because he doesn’t need to. He has the five votes he needs to convict, er, to overrule Roe.

      He has regurgitated arguments that will ring bells with the frothy right – and lay the purported foundations to overrule cases that acknowledged civil rights the right wing opposes. He knows that, if and when progressives acquire a majority on the Court, for example, they would likely overrule whatever opinion he crafted.

  19. earlofhuntingdon says:

    The great Digby has a few thoughts about the meaning of Mothers’ Day. She displaces the pablum often associated with the typical wiki entry (“be nice to moms day”) and refocuses its meaning on mothers and the political and social power women began to wield after the holocaust of the Civil War, the murderous Franco-Prussian war that followed five years later, and the accumulated effects of the industrial revolution.

    The push back from a male-dominated society, eager to maintain an antiquated status quo, was considerable, as it was following both World Wars One and Two. One response was the “birth” of the modern anti-abortion movement. Another, Digby notes, was that African American men acquired the (often theoretical) right to vote following the ratification of the 14th Amendment, but it took another fifty years before the 19th Amendment acknowledged women’s right to vote.

  20. earlofhuntingdon says:

    More leaks week. Steve Vladeck has a few thoughts on the follow-up leaks about the leaked Alito draft opinion.

    The leaks appear to have come from the radical right majority, which seems desperate to grab the brass ring, undoing Roe, before it eludes its grasp. The latest leaks – arguing that the substance of Alito’s draft must have been fundamentally changed by now – are ludicrous. They seem like the fraudulent softening a zealot might sell to a member of the ancien regime, as she knits while the blade drops.

  21. tinao says:

    Well I worked Mother’s Day in a state mental health facility, and here’s my screed to alito:
    Hey alito, you pig headed ich, you may have wheedled your way into power and policy, but in America there is a separation of church and state, you distorted creature! You will not shove your freak beliefs down my throat and up my vagina. For your enlightenment, the human spirit has not permanently inhabited the fetus at the point a woman has an abortion. WHO THE FUCK ARE YOU TO PLAY GOD?????
    As far as my research goes, the child’s spirit defers to the woman’s decision. Yes, read that again, the child’s spirit defers to the WOMAN’S CHOICE! Now get your stunningly stupid head around that, and just can’t wait for you yeahwho’s to try to prove me wrong you ass wipe.

    • tinao says:

      Above, that would be” pig headed ick”, still a bad speller I guess. But I do have the highest IQ in my 7 children Irish Catholic family.

  22. tinao says:

    an what I really want to say is,
    drill down in your soul to go GREEN.
    Your heart charka is GREEN.
    Loves grows

  23. cynthia beaven says:

    A coalition of religious organizations wrote an amicus brief, asserting the Mississippi ban violates religious freedom. Everyone knows these conservative justices just LOVE religious freedom, but apparently, the Court didn’t bother taking that into consideration.

    “Religious traditions espouse myriad views on
    when a human life begins and the process through
    which that occurs. Numerous religious traditions posit
    that life begins at some point during pregnancy or even
    after a child has been born, while others embrace the
    view that life begins at the moment of conception. Still
    other faiths expressly decline to identify a precise
    moment when life begins.

    Consistent with these diverse beliefs, numerous
    religions teach that the decision to terminate a
    pregnancy is a woman’s moral prerogative, and that
    abortion is morally permissible or even required under
    certain circumstances. Accordingly, these religious traditions
    recognize and support the moral right of each woman to make
    her own decisions about her pregnancy in accordance with her faith, beliefs,
    and individual conscience, regardless of her income, social
    status, or other resources.

    The view adopted by the Ban is based on neither
    scientific research nor religious consensus. It is
    consonant with the view of elements of certain
    religious traditions, but ignores and contradicts the
    views of many other religious traditions and
    individuals of faith, including those of amici. The Ban
    implicates free exercise rights by imposing the view of
    certain faiths upon all women in the State, including
    women whose religious faith supports an approach to
    the beginning of human life and the termination of
    pregnancy that is at odds with the approach reflected
    in the Ban.”

  24. Corey says:

    Is it just me or does Alito read like he’s saying that the 9th and 14th amendments are unconstitutional? That’s the jist of what I see. That Alito is literally saying that two parts of the Constitution are not valid.

  25. Anathema Device says:

    In case anyone is in any doubt as to what lies in store for anyone who gets pregnant in America after Roe is killed:

    “El Salvador: woman sentenced to 30 years in prison for homicide after miscarriage”

    From the article:

    El Salvador has some of the world’s most draconian abortion laws, with a total ban on the procedure. Unlike in many other Latin American countries, El Salvador does not permit abortion in cases where the child is conceived by rape or incest, or where the health of the mother or child is at risk.

    Over the past two decades, more than 180 women have been jailed for murder for having an abortion after suffering obstetric emergencies, according to rights groups.

    That is what the forced birthers want to see all around the world.

    • earlofhuntingdon says:

      They’re also tapping into the still simmering fury over the South having lost the unCivil War. They want to be a separate state. They won’t be satisfied with being a permanent minority in a divided USA. They want to be a radical majority in their own state.

      • Anathema Device says:

        “They want to be a radical majority in their own state.”

        In all the states. At least, a majority of the people allowed to vote in all the states.

        I don’t think your union can hold together much longer. The break up will be bloody and painful and leave everyone in and outside the current USA much poorer for it, but I can’t see how, absent a miracle, it can remain intact and still operate as a single country. I give it five years.

    • earlofhuntingdon says:

      If the radical right is successful in holding that abortion is “murder,” then no statute of limitations would preclude prosecuting every woman who ever had an abortion. Proof problems might be simplified by having the state play with who has the burden of proof.

      The direct harm is incalculable. The long-term harm would make it virtually impossible for a third of America to live with the rest of us, something the GOP seems to consider a feature, not a bug.

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