The Deep Dishonesty of Dobbs

Two Years After Leak, Exactly as Predicted (By Me, not Alito)

Dobbs leaked out two years ago (plus a day).

There was so much troubling about even the leaked opinion.

But amid many of its worst features, there was one aspect of Alito’s opinion that especially angered me. And that was how openly dishonest it was about what would happen. The opinion morphed into propaganda—putting a highly misleading gloss on the dark new world Alito was hoping to create.

And even at the time, it was clear that the conservative Justices knew it was propaganda because in another recent opinion, they had all signed onto words making that plain as day.

What appears below was my attempt—at the time—to call out the cynical disingenuousness of the leaked Alito opinion. Yes, I wanted to shed light on it before it became the final opinion.

Sadly, no paper ran it. And no one really picked up on the open and knowing lie of the leak (until later).

Months later, the leaked opinion became the majority opinion, and the dishonest propaganda that so disturbed me hadn’t changed. And with one exception (direct democracy), it’s played out exactly as I feared—and in exactly the opposite way that Alito dishonestly wrote it would.

So you, my loyal readers, get to read what I wrote two years ago:

Justice Samuel Alito’s draft majority opinion in Dobbs vs. Jackson Women’s Health has sparked outrage for plenty of reasons. The overruling of the foundational precedent of Roe v. Wade; the real-world impact it would have on millions of women; its inconsistency with the Justices’ sworn testimony during their nomination hearings; its grounding in misogynistic, centuries-old, repressive beliefs about women’s agency; and its far-reaching consequences in other areas of the law and American society.

But there’s one aspect of the opinion that cries out for more attention—one where Justice Alito’s words are especially disingenuous. And that disingenuousness matters, because it intentionally glosses over just how much the decision jeopardizes rights that, at least for now, are still protected by the Constitution.

Throughout the draft, Justice Alito lays on thick his assurance that after the Court’s decision, a healthy democratic process back in the states will resolve the issue of abortion access.  He breathlessly repeats, on page after page, an idealistic notion that the “people” of the states, through their elected representatives, will decide the fate of women seeking abortion.

He writes that the policy of each state will arise “in accordance with the views of its citizens,” and confidently suggests that this will involve a process of “citizens trying to persuade one another and then voting.” Ultimate policy will vary among states because “the people of those states may evaluate those interests differently.”

He repeatedly casts the decision as one that will be in the hands of “voters”—because some “voters may believe” one thing, and other voters another. In the end, he declares, “we thus return the power to weigh those arguments [about the state’s ability to interfere with private healthcare decisions] to the people and their elected representatives.”

It’s a quaint narrative. But there’s one problem.

It’s not the world we live in today, and he knows it.

Most states, particularly those that are eliminating reproductive rights, no longer reflect healthy representative democracies. The connection between the officials in these statehouses and the “voters” of these states is tenuous at best—and altogether nonexistent in far too many states.

This is made no more clear than by the reality that state laws overturning Roe v. Wade do not reflect the broad majority of Americans, nor the majority in most states. Poll after poll shows the opposite: that majorities or supermajorities supportRoe v. Wade, and oppose the bedrock precedent being overturned.  And that is true in states from Texas to Ohio, which are passing laws just like the Mississippi statute at issue in Dobbs—or worse—at breakneck speed.

So why do state legislators so comfortably legislate against the majority will within their states? Because counter to Alito’s waxing poetic about democracy, many of these statehouses have fallen away from meeting any basic definition of representative democracy. The biggest culprit is extreme partisan gerrymandering, where most election outcomes are guaranteed. Incumbents—almost all of whom reside in districts intentionally sealed off from any accountability on election day—win the general election no matter what they do. Their only obstacle in any election cycle is winning their partisan primary, which is best accomplished by being as extreme as possible and ignoring the majority will.  

So it should come as no surprise that studies show the ideology of gerrymandered legislatures lurches far to the extreme of the electorate itself. And due to these rigged districts (and various voter suppression tactics), the people have no recourse, so the extremist, minority push only accelerates.

And how can I say Alito “knows” this?  Why are his words disingenuous, and not simply misinformed?

Because the Court—Alito included—has openly recognized the breakdown in democracy happening across states. In cases addressing the deep disconnect between voters and the people who represent them in statehouses, they’ve allconceded that there’s a problem.

This took place most recently in the 2019 case Rucho v. Common Cause. In her dissent, Justice Elena Kagan confronted the dilemma in appropriately bleak terms: “These gerrymanders enable[] politicians to entrench themselves in office as against voters’ preferences. They promote[] partisanship above respect for the popular will. They encourage[] a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.”

But she was not alone.

The conservatives echoed her concern. Roberts—in an opinion signed by Alito, Kavanaugh, Gorsuch, and Thomas—explained that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust….” They declared that “[s]uch gerrymandering is “incompatible with democratic principles.” Nevertheless, against Kagan’s dissent, they concluded that this “does not mean that the solution lies with the federal judiciary,” and instructed federal courts to not involve themselves in such cases.

Still, those were incredibly strong words by the conservative justices about how gerrymandered states were “incompatible with democratic principles.”

And that’s when it becomes clear—when you observe Rucho and Dobbs together—just how powerful a one-two punch the Dobbs opinion would deal to reproductive rights.

First, by casting asunder the constitutional right to an abortion secured by Roe v. Wade, the Court would throw that right to the mercy of the states. That’s bad enough.

But by refusing to protect representative democracy in those states, the Court is knowingly subjecting the fate of reproductive rights not to Alito’s glossy description of democratic governance, but to gerrymandered institutions that the Court itself acknowledges are “incompatible with democratic principles.”

Alito’s reassurance in Dobbs that the Court’s decision will “return the power … to the people” is a poorly concealed attempt to soften the perceived damage. Instead, the fate of previously protected rights and the women whose lives depend upon them will be determined by the whims of an extremist minority that is locked into power via a broken democracy. In most states, gerrymandered to the hilt, the voters will hardly have a say at all.

Taken together, it’s a downward spiral with no end in sight, placing rights secured by the Constitution for generations into undemocratic chaos. And the conservative justices’ own words make clear that they know this to be the case.

THE END

So that’s what I wrote in May of 2022.

Since writing this, two things happened:

On the negative side, states with gerrymandered statehouses behaved exactly as I predicted—and exactly the opposite of Alito’s dishonest opinion. Abortion bans are now in place across America, but they do NOT reflect the majority will—the “people”—of these states. They reflect the opposite of that will—and instead they reflect the lack of democracy (and unaccountable extremism) in those states, a reality Alito knowingly concealed in his opinion.

But on the positive side, in many states that have a process for direct democracy (18 do), the majority will is breaking through. Again, not because of these rigged state legislatures, but in spite of them. In fact, as in Ohio last year, and Michigan the year before, the “people” exercising their referenda rights were forced to overcome spirited (sometimes lawless) efforts by extremist politicians in gerrymandered power to block them. Legislators in other states like Missouri are currently attempting to block the will of the people.

Bottom line: when reproductive freedom has survived in red states—“in accordance with the views of its citizens”—it has only occurred in defiance of broken and undemocratic statehouses.

Of course, Justice Alito understood that reality when he wrote his words in the draft opinion. Just as the other conservative justices did when they signed onto his opinion.

And yes, we should all be disturbed when a majority of the highest court in the land is engaged in intentional and cynical disingenuousness about the impact of any decision, let alone one that stripped a federally protected right away from half of America.

Keep going!