#alternative title: Samuel Alito is an Originalist Piece of Shit

[shinobicyrus]

It cannot be overstated just how earth-shattering Alito’s leaked Supreme Court opinion is - not simply for its dismantling of womens’ bodily autonomy (though that in itself is egregious enough) but also for how it goes about overturning the foundational precedent Roe v. Wade and Planned Parenthood v. Casey are built on: the right to privacy and the due process clauses as outlined in the 14th Amendment.

Roe and Casey work on the precedent that the “privacy” of the 14th Amendment can be applied to a woman’s personal medical decisions. This is what’s called an “unenumerated right,” or a right that is implied to exist based off of what other laws say. For instance, the right to a public defender isn’t stated in the constitution at all, but was implied to exist because of a Supreme Court decision in 1963. Alito’s opinion however, asserts that a right must “must be deeply rooted in this Nation's history and tradition.”

The fuck does that mean?

Y’see, as an Originalist (like Amy Coney Barrett), Alito is concerned with the original public meaning of a law at the time it was written.

To an Originalist, since the 14th Amendment was drafted in 1868 - a time when most states criminalized abortion - to apply a “modern” interpretation of privacy to abortion like Roe did twists the 14th Amendment beyond what the drafters would have ever intended or even considered, which to Alito and other Originalists like him is Constitutional anathema.

So why is this legalese important?

Simple: while Alito insists that Roe v. Wade is a special case because abortion is a unique issue, that doesn’t change the fact that his Originalist interpretation of the 14 Amendment will topple that privacy precedent, setting a brand new legal precedent that can be applied to a huge number cases that were also decided on the 14th’s Privacy and Due Process clauses. Rights that may also lack the “history and tradition” that Alito so treasures.

What other unenumerated rights does this endanger? To name a few:

Interracial marriage (Loving v. Virginia)

The right to a public defender (Gideon v. Wainwright)

“Miranda Rights,” or a person’s legal rights being read to them by police during arrest (Miranda v. Arizona)

The right to buy and use contraceptives (Griswold v. Connecticut)

The illegality of sodomy laws (Lawrence v. Texas)   

Same-sex marriage (Obergefell v. Hodges)

Overruling Roe and Casey isn’t solely a horrible miscarriage of justice for women’s reproductive rights. If the legal logic of Alito’s draft carries into the Court’s final decision, then the legal precedence that toppled it will be legitimized and could theoretically be applied to...well. Pretty much all modern civil rights.

Now, Alito assures us that Roe is a special case and that other decisions such as interracial marriage (Loving) or contraception (Griswold) are in no danger of being overturned. They are decided law, so we have nothing to worry about.

Except...that’s exactly what a few recent Supreme Court nominees said about Roe, as well.

#alternative title: Samuel Alito is an Originalist Piece of Shit #Honestly the entire b.s. of Alito's ''history and tradition'' requirement for rights to be legally legitimate #is so enraging because it targets basically *all* unenumerated rights over the past half-century #not to mention Alito isn't a historian - he's a scholar of law #when he talks about history he is speaking as someone who has no credentials as a historian #so when he wields words like ''history'' and worse - ''tradition'' he is wielding them as ideological cudgels #because that's Originalism - it pretends to be unbiased but it chooses worship of the Law as a thing in and of itself #rather than a thing created by people trying to achieve fairness and justice #if this draft becomes precedent then it *WILL* be a domino #and will affect law and civil rights for generations #this is the culmination of a 50 year conservative project #this will be a generational fight Folks #so get ready #Supreme Court #Abortion #Originalism #Samuel Alito #Civil Rights #Dobbs v. Jackson Women’s Health Organization #(also I am totally not a lawyer and I probably got a few details wrong - this is mostly broad strokes)