Beyond its terrible implications for abortion rights, Justice Alito’s draft would upend a long settled system of values.

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Last night a draft majority opinion in Dobbs v. Jackson Women’s Health Organization was leaked

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. If Justice Samuel Alito’s opinion is adopted, it will overturn Roe v. Wade and Planned Parenthood v. Casey. It is radical in its implications.

The draft majority opinion explicitly repeals a major constitutional right — one protected for a half century — on the grounds that “Roe was egregiously wrong from the start.” At the front of our minds must be the impact on the lives of millions of women. Beyond that, what would this mean for our political and judicial systems?

Stipulate that it is just a draft, as Chief Justice John Roberts said today. Votes can change. Assume, though, that it’s close to what the Court will release by the end of the term.

This ruling would usher in a dark and dangerous new constitutional order. For as long as nearly all Americans have been alive, we have had a uniform system of rights, protected nationally by the Constitution, the U.S. Supreme Court, and laws passed by Congress. Now the Supreme Court is busily revoking those national protections. On voting rights. Soon, apparently, on abortion rights. The draft implies marriage equality, LGBTQ equality, and even contraception could be next. Twenty-six states have passed or are likely to soon pass automatic “trigger” laws banning abortion in the first or second trimester as soon as Roe is overturned. Many of the same states that have passed voting restrictions are assailing LGBTQ rights. Conservative states would have one social order, the rest of the country another.

The draft raises once again the place of the Supreme Court in our political system and shows just how out of balance that system is. The Court’s legitimacy is a fragile thing, given that we have granted so much power to lifetime-appointed judges. Now those judges seem eager to use that authority to entrench minority power. Democrats won seven of the last eight popular votes for the presidency, the longest such winning streak in American history. Yet Republican presidents picked six of the nine justices. Justice Neil Gorsuch gets to cast this deciding vote only because Sen. Mitch McConnell refused to allow a vote for the first time in a century at least on a Supreme Court nomination, holding the seat open for a year.

The justices — each the product of a 40-year conservative legal movement centered on judicial nominations — testified that Roe was “settled law” (as Alito and Justice Brett Kavanaugh put it). Gorsuch asserted it “is a precedent. It has been reaffirmed.” Clarence Thomas claimed under oath never to have discussed it or had an opinion on Roe when it was decided, even though he was at Yale Law School in 1973. No relevant facts have changed; no new ethical or medical or social science data has created new understandings. Public support for abortion rights is unchanged. All that changed was the personnel of the Court.

Major rulings often shift politics — and can create a backlash. That happened after Dred Scott established in 1857 that Congress could not bar slavery from territories, a ruling that helped sweep Republican Abraham Lincoln into the White House (and thus precipitated the Civil War). It happened after Brown v. Board of Education, which led to “massive resistance” by southern segregationists (though that decision also inspired civil rights activists). And it certainly happened after Roe itself, which helped spur overtly political organizing by opponents that helped shape the political alignment of the past half century.

Conservative politicians have always seemed to have a cynical relationship with their anti-abortion base. Conservative justices have dominated the Court for decades, yet were somehow always one vote shy of issuing the long-hoped-for ruling. Well, the Supreme Court majority and the extremist politicians in many states seem to have finally reached their goal. They may reap the political whirlwind.

That kind of backlash is far from automatic. When Texas effectively banned abortion last year, and the Supreme Court let it do so without a major ruling, headlines lasted only a few days. The reaction to this draft opinion suggests something is very different. The Supreme Court won’t protect our rights. That is up to all of us — at the ballot box, in legislatures, and on the streets.

The Brennan Center has launched Brennan en español, a Spanish-language site that features research and analysis about voting, redistricting, criminal justice, and other issues particularly relevant to Spanish-language and bilingual audiences. Check it out here

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Democracy

A Win for Fair Voting Maps in New York

In some good news on the gerrymandering front, state courts have been increasingly willing to step up where federal courts have stepped out. Last week, the New York Court of Appeals struck down the Empire State’s congressional and state senate district maps and assigned a nonpartisan expert to redraw them. It’s the latest example of a state court protecting voters from legislators trying to consolidate power for themselves through partisan gerrymandering. “In the grow­ing string of state court victor­ies, the fight for fair maps is show­ing unex­pec­ted vigor and Amer­ican voters are the winner,” Michael Li writes. Read more

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Paying to Keeping Election Workers Safe Is Worth the Money

A recent Brennan Center survey of election officials found that one in six have experienced threats because of their job while more than three out of four say those threats have increased in recent years. Derek Tisler and Lawrence Norden estimate the cost of the security upgrades needed to keep election workers and offices physically secure at approximately $300 million. “It should be clear that for a relatively minimal investment the federal government could make significant progress in protecting the most important election resource we have: the tens of thousands of workers who are necessary for our elections to succeed,” they write. Read more

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Protecting Government Science

Last week, the House Select Subcommittee on the Coronavirus Crisis held a hearing on how political interference hampered the federal government’s pandemic response. It focused on a recent Govern­ment Account­ab­il­ity Office report that included recommendations on how to prevent such interference. The recommendations align with those made by the Brennan Center’s National Task Force on Rule of Law & Democracy, as well as the provisions of the Scientific Integrity Act, bipartisan legislation that passed the House in 2020. “Passage of this legis­la­tion is the best way to ensure that the govern­ment’s decisions about public health, the envir­on­ment, food and work­place safety, and much more are informed by accur­ate science, free from manip­u­la­tion for polit­ical gain,” Katherine Scotnicki writes. Read more

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Coming Up

VIRTUAL EVENT: Is the Big Lie Protected Speech?

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Wednesday, May 4, 6–7 p.m. ET

One-third of Americans still believe the Big Lie that Donald Trump won the 2020 presidential election. The Supreme Court has ruled that certain lies and inaccuracies are protected under the First Amendment — but when an elected official’s lies intentionally undermine our democracy, does that protection extend?

Join us for a live discussion with Ciara Torres-Spelliscy, Brennan Center fellow and professor at Stetson Law; Catherine J. Ross, law professor at George Washington University and author of A Right to Lie? Presidents, Other Liars, and the First Amendment; Katy Glenn Bass, research director at the Knight First Amendment Institute; and moderator Eugene Daniels, White House correspondent and Playbook co-author at Politico. RSVP today

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VIRTUAL EVENT: The Independent State Legislature Theory’s Radical Threat to Democracy

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Wednesday, May 11, 1:30–2:45 p.m. ET

Under the independent state legislature theory, state legislatures would have exclusive power to make election law, unconstrained by state constitutions, state courts, state governors — and maybe even federal law. Join us for a live discussion about it with Vikram D. Amar, dean of the University of Illinois School of Law; Leah Litman, professor at the University of Michigan Law School; Carolyn Shapiro, co-director of the Institute on the Supreme Court at Illinois Tech; Kate Shaw, co-director of the Floersheimer Center for Constitutional Democracy at Cardozo Law; and moderator Wilfred Codrington III, Brennan Center fellow and professor at Brooklyn Law School. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Ames Grawert on President Biden’s first clemencies // ABC NEWS

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Michael Li on state courts and redistricting // NBC NEWS

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Faiza Patel and Rachel Levinson-Waldman on ways to reform the Department of Homeland Security // THE HILL

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Jasleen Singh on new restrictions for voters with disabilities // USA TODAY

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Hernandez Stroud on a possible receivership for Rikers Island // NEW YORK POST

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Jennifer Weiss-Wolf on the movement to get rid of the “tampon tax” // WNYC

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Feedback on this newsletter? Email us at [email protected]


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