The Supreme Court’s decision Friday in Dobbs v. Jackson Women’s Health Organization sent shock waves through the United States, provoking controversy and rancor that will last for years to come. In the end, the final version of the court’s opinion, written by Justice Samuel Alito, was quite similar to the draft leaked in May. The main changes — and the additional concurring and dissenting opinions filed by other justices — illustrate how bitterly divided the court is.
For a long time, the justices have sought to portray themselves as a collegial group who respect principled disagreements on major issues. The decision and additional opinions show how far that is from the reality.
The Supreme Court likes to portray itself as a collegial place ...
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 dissents, including dissents that are sometimes critical or even acerbic, 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 about their close friendship. Even as the nation grew increasingly polarized and politics more rancorous, Ginsburg promoted the court’s civility as a model and praised her newest Trump-nominated colleagues after serving with them.
In January, respected Supreme Court journalist Nina Totenberg reported that Justice Sonia Sotomayor was participating in court activities remotely because Justice Neil Gorsuch refused to wear a mask. The court swiftly released a joint statement from the justices denying any conflict and claiming that they were “warm colleagues and friends.”
... but that’s not visible in the court’s majority opinion
There is little collegiality in Alito’s majority opinion when he discusses the reasoning of the dissenting minority of justices. In various places, Alito’s majority describes the dissent as “profess[ing] fidelity to stare decisis,” “fail[ing] to seriously engage with … important precedent,” and “attempt[ing] to obscure this failure.” The majority opinion claims that the dissent proposes a “vague formulation” that “imposes no clear restraints on … the exercise of ‘raw judicial power.’” It criticizes the dissent for ignoring the states’ interest in fetal life, claiming that “perhaps this is designed to stoke unfounded fear,” and concludes that the dissenters simply dismiss the destruction of potential life as utterly insignificant.
The tone of the majority’s criticism is as harsh as its substance. It describes Roe, which the dissent supports, as “egregiously wrong” and “deeply damaging,” with “constitutional analysis … far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” Indeed, the majority opinion uses the phrase “egregiously wrong” seven times. The majority, responding to the dissent’s charge that the majority has abandoned stare decisis, irritably retorts that “we have done no such thing, and it is the dissent’s understanding … that breaks with tradition.” It also rails against Chief Justice John Roberts’s concurrence, claiming that its “most fundamental defect is its failure to offer any principled basis for its approach.”
This harsh language provoked Justice Brett Kavanaugh to write a separate concurrence specifically distancing himself from it. While agreeing with both the outcome and the court’s overruling of its previous rulings in Roe and Casey, he described the interests on both sides of the abortion debate as “extraordinarily weighty.” Kavanaugh also asserted: “I have deep and unyielding respect for the Justices who wrote the Casey plurality opinion. And I respect the Casey plurality’s good-faith effort to locate some middle ground or compromise.” Kavanaugh closes by praising “All of the Justices, past and present, who … grappled with the divisive issue of abortion” and underlining his belief in their “good faith,” “careful deliberation” and “sincere understandings of the Constitution and precedent.”
The dissent is also strongly worded
The dissent, jointly written by Justices Stephen Breyer, Elena Kagan and Sotomayor, minces few words but primarily adopts a tone of deep concern or even alarm about the implications of the majority’s ruling. Probably the harshest attack on the majority comes on page 5, where the dissenters assert: “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” The dissenters further elaborate on this charge throughout their dissent.
The dissent is occasionally sarcastic, as in footnote 5: “So apparently, the Fourteenth Amendment might provide protection for things wholly unknown in the 19th century; maybe one day there could be constitutional protection for, oh, time travel. But as to anything that was known back then (such as abortion or contraception), no such luck.” But for the most part, the dissenters describe the damage they perceive the ruling will do to women’s equality, reproductive liberty and to the court itself. They close, not with respect, but “with sorrow” for the court and for “the many millions of American women who have today lost a fundamental constitutional protection.”
The chief justice
Notably, the chief justice, usually the most institutionally minded member of the court, stands alone in the case. He concurs only with the judgment and criticizes both the majority and the dissent for their certainty. His opinion provides further evidence that he had hoped to craft a compromise that would further cut back on Roe without formally overturning the ruling.
Public reactions to Dobbs have been highly charged, turning up the heat substantially in an already contentious political environment. The opinions issued by the justices suggest that disagreement and even rancor over this matter has undercut norms of collegiality on the court too.
With an isolated leader and a conservative majority charging ahead, the court seems more likely to become divided than to provide an example of unity.