Supreme Court Justice Samuel Alito’s leaked draft opinion overturning Roe v. Wade, which he sent to the other justices as the basis for a majority ruling that would “return” the question of abortion to the states, oozes authority and brooks no opposition. Roe “must be overruled,” his draft declares. “Roe was egregiously wrong from the start,” it proclaims. And, after bemoaning past excursions into “freewheeling judicial policymaking,” a firm directive: “The Court must not fall prey to such an unprincipled approach.”
At first glance, it appears that Alito and his law clerks have left no relevant case unexamined, no history unexplored in making their case against Roe. But wade in deeper, and it becomes clear that Alito’s draft relies on a misstatement of both facts and context surrounding perhaps the most famous about-face in Supreme Court history—the 1954 ruling in Brown v. Board of Education, which declared racial segregation in education to be inherently unequal, casting aside the Court’s 1896 embrace of separate but equal in Plessy v. Ferguson.
As if gravitas can be acquired by adverb, Alito’s draft also overflows with emphasis. Roe’s reasoning was not just “exceptionally weak,” it was “remarkably loose.” Roe’s “survey of history” was not just “constitutionally irrelevant” but “plainly incorrect.” The 7–2 majority did not just wield “raw judicial power,” it “short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.”
All Supreme Court rulings rely on research and legal citations, but Alito’s leaked opinion is awash in them. The draft mentions 175 Supreme Court and lower court decisions, and draws on a dozen books, more than two dozen articles in academic journals and law reviews, as well as textbooks, dictionaries,and one of the Federalist Papers. One impressively long footnote runs almost three pages and cites 52 court cases.
Before signing on to Alito’s draft, though, his colleagues might want to fact-check his drawing a direct line from Plessy and Brown to Roe and Planned Parenthood v. Casey, the 1992 ruling that upheld Roe (while abandoning Roe’s reliance on a constitutional right to privacy in favor of the right to liberty).
A better-informed account would not further Alito’s cause—indeed, a better-informed account would undermine his assertions about Plessy and Brown. The Alito narrative can be summed up this way: Plessy was “egregiously wrong” when it was decided. Fifty years later, the Warren Court justices unanimously recognized the odious error of their predecessors and corrected the mistake. Simple, clean, straightforward, as Alito tells it.
That’s not how it happened, however. The Warren Court did not rule in Brown that Plessy was egregiously wrong. To achieve unanimity, the justices took pains to avoid a lengthy discussion of Plessy. Instead, they decided that 50-plus years had produced a wealth of evidence—new evidence, based on actual experience—of segregation’s inherent inequality.
Alito’s draft opinion, foreshadowed by his combative questions during the oral arguments in the case, creates an alternate universe in which the Warren Court was correcting Plessy’s error. Why? Because Alito wants to align himself with one of the Court’s heroic moments. He wants to be a justice in shining armor, coming to the rescue, restoring order to the chaos of judicial authority run amok. As Alito writes, “Some of our most important constitutional decisions have overruled prior precedents.” He cites three. At the top of his list: Brown v. Board.
So, in Alito’s alt-world: Throwing out Roe and Casey is just as important as declaring an end to the pernicious practice of segregating schools, just as important as finding that segregation is inherently unequal, just as important as extending civil rights long denied to African Americans.
But there is no legitimate parallel between Brown’s reasoning and Alito’s draft. Warren’s opinion made plain that the Court had no intention of rearguing Plessy, declaring, “We cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in light of its full development and present place in American life throughout the Nation.”
To emphasize that last part, the unanimous Court essentially said in Brown: No, we can’t look at public education as it existed in 1896. That’s irrelevant. We need to look at the system’s “full development and present place in American life” (italics added) and the mounting, irrefutable evidence that separate has not been and never can be equal.
Alito does precisely what Warren advised against. His draft turns the clock back to 1973, when Roewas decided, and then to 1992, when Casey revisited Roe. Alito does not rely on new evidence from the past 30 years. Instead, he reexamines each ruling as if he were one of the sitting justices at the time, and he dissents. He says, without equivocation, that both cases were wrongly decided and that he and fellow justices “must” fix those errors.
He appreciates that reversing Roe has the potential to cause great turmoil, but that is not the Court’s concern. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” he writes. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
The Warren Court was not so disingenuous. Earl Warren, who had interrupted his third term as governor of California to take the job of chief justice, was acutely aware that the Brown ruling would be divisive. The Court, in the four years before his arrival, had eroded the legal basis for segregation with a series of rulings. Resistance, fueled by white segregationists with power in southern state capitals and Washington, was building. The justices talked among themselves about the possibility of violence erupting if the Court brought an end to segregation.
As recounted in Richard Kluger’s book Simple Justice, Warren felt that a unanimous ruling was the justices’ best shield against the defiance they believed was coming. They had no other weapon, Justice Tom Clark told Kluger in an interview 20 years after the ruling. Clark was a Texan with years of D.C.experience, including a stint as attorney general. “You know,” Clark said, “we don’t have money at the Court for an army and we can’t take ads in the newspapers, and we don’t want to go out on a picket line in our robes. We have to convince the nation by force of our opinions.”
Kluger was impressed by Warren’s method of convincing all eight justices to join him. The chief justice, Kluger wrote, insisted on making the Brown ruling “as bland and as non-accusatory as possible. Any pointed language would almost surely have shattered the unanimity Warren had won.” Plessy was a sticking point. Several justices did not want to disavow it, let alone say it was wrongly decided. Warren came up with two mild sentences that dismissed the ruling as outdated thinking. “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson,” Warren wrote, the federal courts were now relying on new evidence that is “amply supported by modern authority.” He added, “Any language in Plessy v. Ferguson contrary to this finding is rejected.” So, the “language” in Plessy, but not the ruling itself. It was a quiet end to a precedent-setting decision that had helped foster decades of pain, trauma, oppression, violence, and a denial of opportunity.
In 1896, Justice John Marshall Harlan’s ringing dissent described the majority ruling as shameful. Harlan saw how Plessy would pave the way for segregation to spread to every area of American life. He predicted that, in time, Plessy would “prove to be quite as pernicious as the Dred Scott Case,” which had said (in 1857) that Black Americans, whether enslaved or born free, could never be citizens of the United States.
Years later, Harlan’s eloquent dissent inspired Thurgood Marshall and the NAACP Legal Defense in their long-term campaign to dismantle the separate-but-equal doctrine. Yet Warren, in writing Brown, did not follow the path that Harlan had blazed. Warren’s ruling did not mention Harlan, or any of Harlan’s pointed reasons for dissenting. Warren stuck to his resolve not to turn the clock back to 1896.
Alito has no such hesitation. He telegraphed his clock-rewinding intentions during the oral arguments in December when the justices heard the case of Dobbs v. Jackson Women’s Health Organization. Alito’s foil was Solicitor General Elizabeth Prelogar, who was laying out the Justice Department’s case for striking down a Mississippi law banning abortions after 15 weeks of pregnancy.
Questioning Prelogar, Alito set his sights on Plessy. “Would it not be sufficient,” he asked her, to say Plessy “was an egregiously wrong decision on the day it was handed down and now it should be overruled?”
Alito was pursuing a plan. He knew that Prelogar would never defend Plessy. He wanted her to say, yes, of course, Plessy was wrong, and yes, of course, the Court should have overturned it immediately. Prelogar was trying her best to stay out of the trap Alito was setting. “I think, at the very least,” she said, “that the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case.”
Without quoting Warren, Prelogar was adhering to the standard he had advanced in Brown. Where is the new evidence? What was the new argument? Alito brushed her protestations aside. He was still in the 1890s. “Would you answer my question?” he demanded. “Had [Plessy] come before the Court in 1897, should it have been overruled or not?”
Prelogar agreed, of course—“I think it should have been overruled,” she said—while valiantly trying to point out the flaw in Alito’s line of questioning. But she was on her heels, floundering a bit. Alito kept pressing. In retrospect, it is now clear that Alito was offering a preview of his draft opinion, embedded in this telling exchange:
“I still don’t understand,” Alito said. “I still don’t have your answer clearly. Can a decision be overruled simply because it was erroneously wrong, even if nothing had changed between the time of the decision and the time the Court was called upon to consider whether it should be overruled? Yes or no?”
The trap was fully set. Prelogar steered clear. “This Court, no, has never overruled in that situation just based on a conclusion that the decision was wrong,” she replied.
A less-determined justice might have abandoned that line of attack. Not Alito. In his draft opinion, he seizes on a few of Prelogar’s words, calling it a concession and ignoring her repeated efforts to say that the Court requires new evidence to overturn its precedents. Here’s Alito’s sleight of hand, from the draft: Plessy was “egregiously wrong on the day it was decided,” he writes, “and as the Solicitor General agreed at oral argument [italics added], it should have been overruled at the earliest opportunity.”
It is hardly surprising that nine justices might reach different conclusions about a contentious legal issue. But it is surprising—and alarming—that a justice would distort history and twist an advocate’s words to craft a majority opinion in a case of such enormous consequence. Whatever their views, if the other eight justices care about the Court’s credibility and legitimacy, they should use Alito’s draft as Exhibit A in how not to decide a Supreme Court case. And Alito? As befits his draft, he would be left alone, speaking only for himself.