By now, most Supreme Court observers are aware that Associate Justice Samuel Alito authored the infamous decision overturning Roe v. Wade and its made-up “constitutional right” to abortion. How he was able to hold his majority together despite their differing approaches to legal interpretation, however, has always remained a bit of a mystery.
That is, until now.
In her newly released book, Alito: The Justice Who Reshaped the Supreme Court and Restored the Constitution, Federalist Editor-in-Chief Mollie Hemingway peels back the curtain on how the Bush appointee constructed the court’s majority opinion in Dobbs v. Jackson Women’s Health Organization (2022).
While each justice in the majority are self-described originalists, Hemingway details how each has their own secret sauce when it comes to their respective approaches to the law. This means that it was up to Alito to find a way to incorporate their varying views into the final decision overturning Roe and its successor, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).
Hemingway notes that in the days after oral arguments, the justices met for a conference to express their views on Dobbs and indicate how they would vote on the case. The final vote margin came down to 5-4 to overturn Roe and Casey, with the majority being comprised of Associate Justices Clarence Thomas, Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
At the Supreme Court, the most senior justice in the majority assigns the opinion. While the chief justice is always considered to be the most senior, the majority assignment ultimately fell upon Thomas since Chief Justice John Roberts did not support overturning Roe and Casey.
Hemingway writes that, despite his decades-long criticisms of Roe and Casey, it was “an easy call for Thomas” to assign Alito the seemingly insurmountable task of authoring the Dobbs decision. Unlike Thomas, who holds differing views on stare decisis and “will not trim his views to attract other justices to join his opinions,” Alito was seen as the “best person for the job” because “one of his greatest strengths is keeping a majority opinion together and incorporating arguments from everyone.”
“That is all the more important when the vote is 5-4,” Hemingway writes. “Alito is known for being generous, humble, and ecumenical in his opinion writing. Over his decades on the Court, he has learned to be bold as prudence allows. Alito is not upset when another justice wants to include something that he believes is unnecessary or that tinkers with his prose.”
One of the chief areas in which Alito was all but required to perform a judicial balancing act was on the issue of substantive due process.
Hemingway notes that when writing the Dobbs opinion, the Bush appointee had to account for Thomas’ position that the Supreme Court “was in error when it kept finding rights” in the 14th Amendment’s due process clause. At the same time, she writes, Alito also had to consider the beliefs of justices like Kavanaugh, “whose concurrence emphasized how singular Dobbs was among substantive due process cases and how important precedent was.”
After taking these points into consideration, Hemingway details how Alito spent weeks crafting a majority opinion that incorporated these varying views but that didn’t sacrifice the core legal argumentation necessary to overturning Roe and Casey. After going through several rounds of edits, he produced an opinion that his fellow justices in the majority quickly signed onto.
“It was obvious to the other justices that the draft had been circulated before the formal distribution,” Hemingway writes. “They were not prepared for how powerful it was and were shocked by how devasting the opinion was to the Roe and Casey regimes.”
[Explosive Report: As Dobbs Majority Faced Death Threats, Liberal Justices Slow-Walked Release]
