Why Did Five Supposedly Smart People Decide to Be Remembered for Dobbs Hackery?
by Neil H. Buchanan
The pure hubris of the majority opinion in Dobbs continues to amaze. In addition to everything that Professor Colb has written on the topic (a particularly strong example being "Sam Alito and His Big Dicta"), Professor Dorf's two columns yesterday (on Verdict and here on Dorf on Law) offered an extended critique of one relatively small aspect of the 5-justice majority's mess, showing that the opinion dishonestly relied on pro-choice scholars' work to justify its assault on women's bodily integrity. The worst judicial hackwork can have the (very inadequate) side benefit of generating brilliant scholarly criticism.
Tomorrow, I will discuss an implication of the Court's no-longer-even-plausibly-deniable embrace of theocracy (more accurately: Christian nationalism) in the context of "state support" of abortion through various employment and tax laws. Here, however, it is worth stopping for a moment to marvel at the pure arrogance of the five signers of the Alito opinion.
After all, Dobbs is a breathtaking assault on millions of people's lives. Why did the majority not make a better show of it? That is, the five jurists from Gilead could not even be bothered to try to concoct a good cover story. Why risk pulling a muscle pretending that we're not hacks? they seem to have thought, while fighting back a bored yawn. It is a good question.
Given how important the Dobbs outcome was to the political movement that installed them in power, one might have thought that each of the five people in the majority would take special care not to, say, insult people's intelligence by citing Ruth Bader Ginsburg in supposed support of their analysis. Every one of those politicians in robes found himself or herself on the precipice of achieving what was almost surely their most sought-after lifetime goal: slaying the Roe v. Wade dragon.
I cannot speak for others, but I can say that if I were about to hit "publish" on something that I would surely want to have cited as my most important legacy, I might try not to embarrass myself.
This is all the more surprising because those jurists surely knew that they would be accused of lying to get on the Supreme Court in the first place. Why would none of them think to tell at least a minimally defensible story to justify going from "Roe is settled law" to "Roe was egregiously wrong and always was so"? Again, this is what will lead your obituary -- the opinion that will be cited for decades to come in celebrations of your life's work -- and you mailed it in?
This is especially notable because the conservative movement invested huge piles of money and expended all kinds of political capital to create a "deep bench" of supposedly brilliant legal minds. These five are, we are to believe, the best of the best -- perhaps only exceeded by their favorite martyr, Robert Bork. Another one of their heroes, Antonin Scalia, had a completely unearned reputation that was captured in the confident assertion by his acolytes: "You might not agree with him, but you have to admit that he's brilliant."
This was never true, of course, as Scalia's jurisprudence boiled down to bullying and bluster. Beyond a completely opportunistic reliance on his never-quite-identifiable version of originalism, he had no problem making the laughably false claim that the text of the equal protection clause "explicitly establishes racial equality as a constitutional value." The dripping scorn with which he would attack his colleagues was not only bad form but self-defeating, as he alienated potential allies (by, among other things, obliviously insulting Sandra Day O'Connor immediately upon becoming her colleague), and his arguments were often "pure applesauce." The notion that he was a principled conservative tethered to a text was, to choose my words carefully, crap.
Even so, Scalia did not live long enough to join in the rolling back of a key human and constitutional right. Also, much of his toxic legacy has roots in his almost superhuman ability to be awful to other humans. Perhaps he simply could not restrain himself from calling his colleagues idiots. More likely, he did not care. In any event, we will never know how he would have approached writing the Dobbs opinion (which he certainly would have insisted upon authoring).
While Alito and Clarence Thomas are nearly as problematic as Scalia was, the other three are neither renowned for dickishness nor old enough not to care. (Brett Kavanaugh had his revealing meltdown during his confirmation hearings, but he is no Scalia.) And again, they are the purported cream of the Federalist Society's crop. If the idea was simply to get five votes and damn the reaction, why not just grab the first several people in line at a Trump rally? Why pretend that the conservative legal movement has any substantive force beyond the brute political kind?
In other words, given their pedigree, we reasonably could have expected that the Dobbs opinion would actually be somehow good, if not full-on intimidating, in its legal firepower. I am not saying that we should have expected them to produce something that is convincing, or even mildly tempting in its logic. But at the very least, the opinion should have been of a high enough quality to cause those who disagree with it to stop and say, "Hmmm, I have to admit, this is well crafted. I can see how we can ultimately defeat it, but this is a very strong statement of the anti-Roe position. I reluctantly concede that I'm impressed."
Clearly Alito was not willing to strengthen the controlling opinion, but any of the others could have put together a "here's a better way to think about it" concurrence that might have at lest had the veneer of respectability. Instead, they all signed an opinion that cited a jurist from the 1600's who argued that husbands should be able to rape their wives and who might not have literally burned women as witches but did condemn them to death. The opinion is so silly that it has been mocked mercilessly, and for good reason. Roberts's concurrence distanced himself from the legal strategy of the other five extremists (bemoaning not their reasoning or outcome but their unseemly and unnecessary haste); but as far as I can tell, no one said: "You know what? I've wanted to overrule Roe for decades, but not with reasoning like this."
Again, this is a defining moment. Scalia's lifelong project as a writer of judicial screeds was to create and defend what he thought was a coherent school of thought, which in some ways is a bigger deal than attacking women's freedom in one landmark case. It seems doubtful that he joined the Court specifically to overturn Roe so much as to enact his version of Catholic theocracy as a general matter. Hiding that goal behind neutral-sounding theoretical pretensions, all the while opportunistically lapsing back into intentions-and-expectations arguments as needed, was necessary for his outcome-driven approach. Unlike his self-own regarding the Equal Protection clause, which he easily could have fixed without changing anything that mattered to him, being opportunistic was the only way to avoid admitting that his grand theory was never what he claimed it was.
All of which demonstrates the arrogance of power, because sloppiness is allowed only to those who no longer have to care about being obviously wrong. During my 1L summer, I interned with a U.S. Magistrate judge, which allowed me to observe federal cases pitting Assistant U.S. Attorneys against underfunded private defense attorneys and public defenders. There is no doubt that the process of selecting federal attorneys is rigorous, and the people who take those jobs are presumptively capable of being effective lawyers.
That is not what one could observe in live court, however. At first, I was confused by the sloppiness of the prosecutors, just as I was surprised by how much better the lawyering was on the other side. After watching the government win motion after motion, however, it became clear that they were not trying because the judges did not make them try.
Indeed, many of the judges were essentially doing the prosecutors' jobs for them. In one hearing, for example, the defense laid out a series of arguments, citing on-point case law, to explain why an arrestee's signature on a waiver form was improperly obtained (via coercion and so on). The prosecution had no answers, but the judge then looked at the defense attorney and said: "But this is your client's signature on the dotted line, right? Case closed." If you, dear reader, were a prosecutor and could play on that kind of tilted playing field, would you bother to keep your skills sharp?
In Dobbs, the majority did not even have to count on a nominally superior decision-maker to let them get away with thumbing their collective nose at the world. "We can do whatever they want." Says who? Their answer was simple: “Says us!”
I have never found the notion of "the judgment of history" to be politically meaningful, and I certainly have no reason to believe that worries about legacies have changed any Republican's actual behavior. Here, however, there ought to have been a different motivation. These are people who spent their lives getting to the most exciting moment that they will likely ever experience. They had the time, the training, and willing assistants available to produce and show off their very best effort. They gave us Alito's misbegotten muddle.
These people have held themselves out as the intellectual vanguard of their political movement, and plenty of non-conservatives have bought into the hype. Now that they have hit the "publish" button on work product that would be fortunate even to earn a review of "meh," we all know better. Power, it turns out, is not merely arrogant. It delights in brazen disrespect.
"Modesty and grace in victory?" No. More like: "Suck it, losers!" They truly did learn the lessons of their party's leader.