On May 5, 2022, the current affairs site politico.com had a major scoop. It obtained the draft opinion of Justice Samuel Alito, apparently speaking for the majority of the judges of the Supreme Court of the United States (SCOTUS) overruling Roe v Wade (1973) and Planned Parenthood v Casey (1992). These two previously decided cases enable women in the US to access abortions, albeit with some restrictions.
This is the first time that a draft opinion of the SCOTUS has been made public before the judgment was delivered. SCOTUS was established on March 4, 1789. The almost 225-year-old court, founded to interpret the American constitution that was adopted in 1789, has a long history of being an ideologically divided court, hearing deeply contentious political issues. The draft opinion, written for Thomas E Dobbs, State Health Officer of the Mississippi Department of the Health v Jackson Women’s Health Organisation, is expected to be delivered in June or July.
Within both the polity and law in the US, no issue is as emotive and divisive as matters related to abortion. The Republicans oppose abortion rights, framing the conversation as “pro-life”, while the Democrats strive for the ability of women to have reproductive control over their bodies — or “pro-choice”. Doctors providing abortions have been attacked in the past, and their clinics bombed. Judges are appointed to the SCOTUS by conservative and liberal Presidents keeping in mind how they would rule on key issues like abortion rights.
Let me give some context to Justice Alito’s draft opinion, that will enable the reader to discern the rationale for his opinion and appreciate the politics within constitutional law. I have written in an earlier column about the 6-3 divide in the SCOTUS, with the conservatives constituting the majority (‘Justice in the time of the virus’, IE, January 22). Conservative judges also frame the regulation of abortion as a state legislative rights issue, giving enormous weight to the apparent public opinion within those states. Federalism in the US grants the 50 states within the country enormous fiscal and legislative power. This is different from India’s model of federalism.
In the draft opinion that was leaked, after being circulated to the other eight judges of SCOTUS, Justice Alito writes “We hold that Roe and Casey must be overruled,” adding, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Justice Alito continues that “at the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision about a third of the States had liberalised their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire nation, and it effectively struck down the abortion laws of every single State.” Here is how the issue is initially framed: Legislatures in states must be able to adopt laws on abortion as they see fit. The justification offered is in the context of the legitimacy of such laws being made by the will of the people, through their representatives.
Therefore, Justice Alito writes “in some States voters may believe that abortion rights should be more even more extensive than the right Casey and Roe recognised. Voters in other states may wish to impose tight restrictions based on their belief that abortion destroys an unborn human being…. Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.” Justice Alito clearly sees this an issue for the legislature to decide based on the will of the voters.
A key question then arises. Is it appropriate for any constitutional court to pay attention or rely on public opinion to arrive at conclusions? The highly respected Pew Research Center reported in 2021 that 59 per cent of US adults say that abortion should be legal in all or most cases, while only 39 per cent think it should be illegal. However, the deep difference in viewpoints is reflected in political party supporters and their views, evidenced by the Democrats (72 per cent) and Republicans (39 per cent) who support abortion. Within the scheme of Justice Alito’s own logic of the will of the people, a majority would appear to support abortion rights, and therefore the court should uphold abortion rights.
Yet, is public opinion a legitimate parameter for constitutional courts to take into account when adjudicating issues of rights? The notion that constitutional courts should take the will of voters into account is at odds with the understanding of courts elsewhere, like in India. Across jurisdictions, in the constitutional scheme of separation of powers, the executive, legislature and judiciary are expected to play different roles: The executive to govern using the rule of law, the legislature to make law and the judiciary to ensure that those laws are in consonance with constitutional values. The introduction of public opinion and deference to the legislature as a valid basis for adjudication by constitutional courts leads to extraordinary conclusions.
For instance, at various points of time, the SCOTUS may have reflected the popular opinion of the time and consequently upheld slavery (Dred Scott v Sandford, 1857), segregation (Plessy v Ferguson, 1896), sodomy laws (Bowers v Hardwick, 1986) and forcible exclusion and relocation of the ethnic minority of Japanese Americans (Korematsu v United States, 1944). The virtue of constitutional courts is that they are expected to be insulated from public opinion. In that regard, they are freed from the vagaries of the will of the voters and enjoy the quiet introspection and justification through legal reasoning that the law creates space for. It is this solitude that is the privilege of both the bar and the bench. This solitude is the essence of the practice of law. To shatter that solitude is to make the interpretation of the law subject to the vagaries of shifting public opinion, leading to popular decisions, that are often opposed to the dignity of sections of citizens.
The writer is a Senior Advocate at the Supreme Court