According to news reports, the Supreme Court of the United States is overruling Roe v. Wade and Planned Parenthood v. Casey, and a draft by one of the right-leaning justices has leaked. It is here:
https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf
I have given the almost-100 pages an initial perusal, and my off-the-cuff reactions are two.
First, the smugness, sanctimoniousness, clumsiness, and self-righteousness throughout the decision are appalling.
Second, this decision, assuming it comes down substantially as written in this draft document apparently authored by Justice Alito, is an excellent illustration of what Mark Tushnet calls "American Legal Realism":
For Legal Realists, the law just is the set of professionally responsible available argument-types or moves coupled with argument-forms that tie one move to the next. The law isn’t a set of substantive propositions about rights, liabilities, and the like. . . .
[T]he conditions for overruling an on-point decision take a bit of time to manifest themselves. . . . As political conditions in the United States changed, legal propositions that once were ridiculous moved from outside the limits of political reasonableness to inside them: from “off the wall” to “on the table.”
. . . . [C]ommonly (I think), the judge will have a sense going into the case that one or the other side ought to prevail.35 That sense might derive from ideology, the judge’s sympathy or lack thereof for the party – pretty much from anywhere. . . . The question for the judge is then, “Can I develop a professionally responsible legal argument that gets me there?” . . . . [Because there is a wide] availability of [such] arguments to every possible end, a talented judge will answer, “Yes,” and then construct the argument. (Again to offer an equivalent formulation: Talent [of lawyers, and of judges' law clerks] is measured by the ability to construct arguments to whatever conclusion the judge seeks.)
[The judges] follow the arguments down the path to holding for the party she prefers . . . [and if s/he] discover[s] that there’s an insurmountable obstacle to the conclusion (that is, discover that the other side has arguments she can’t refute that would prevent moving forward), and [the judge] simply arbitrarily leap over the obstacle. Depending on where the judge is in the legal hierarchy, sometimes she’ll be able to get away with what is, almost by definition, a professional irresponsible argument. [M]ost Legal Realists think that most judges, being only of ordinary talent, do this a great deal of the time.[1]
That is my sense of what Alito is doing here. To achieve his ideologically desired result, and having obtained a majority of justices to support him, he is deciding the case the way he wants and trying to concoct some sort of reasoning and back-up to justify that result. Is that argument "professionally responsible," to quote Tuchnet, and is it persuasive to American lawyers and the American public?
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[1] Mark Tushnet, American Legal Realism Today, SSRN-id4001178 (Feb. 19, 2022).