The leaked U.S. Supreme Court draft opinion that would overrule the constitutional right to abortion seeks to bolster its legitimacy by pointing to two of the court鈥檚 historic education decisions, including Brown v. Board of Education of Topeka, which overruled an earlier case that had entrenched racial segregation in public schools and other areas of American life.
鈥淚n appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions,鈥 Justice Samuel A. Alito Jr. writes in the Feb. 10 鈥1st Draft鈥 opinion in a major abortion rights case from Mississippi, in which the court has yet to release a final ruling. 鈥淪ome of our most important constitutional decisions have overruled prior precedents.鈥
Alito cites , which overruled the 鈥渟eparate but equal鈥 principle from the court鈥檚 1896 decision in Plessy v. Ferguson, as the leading example of the court correcting an egregious mistake. He also singled out , the 1943 decision that overruled a 1940 ruling, , and held that public school students could not be compelled to salute the U.S. flag in violation of their beliefs.
鈥Barnette stands out because nothing had changed during the intervening period other than the court鈥檚 belated recognition that its earlier decision had been seriously wrong,鈥 Alito writes.
The unprecedented , which may yet undergo changes, was published Monday by and confirmed Tuesday by the Supreme Court. Chief Justice John G. Roberts Jr. called the leak a 鈥渂etrayal of the confidences of the court鈥 and ordered the court鈥檚 marshal to investigate.
Draft opinion says court must correct its own mistakes
The Alito draft opinion, in the pending case of , would overrule , the 1973 decision that established a constitutional right for a woman to terminate a pregnancy, as well as , which in 1992 reaffirmed the basic right to abortion while establishing a new standard for evaluating restrictions on abortion. Politico reported that overruling Roe had the support of the court鈥檚 five most conservative members, which the court said nothing to confirm.
鈥Roe was egregiously wrong from the start,鈥 Alito writes in the draft. 鈥淚ts reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people鈥檚 elected representatives.鈥
As part of his arguments in the 98-page draft, Alito addresses whether the principle of stare decisis, in which the court generally stands by its precedents, should prevail in the challenge to Roe and Casey.
鈥淲hen one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake,鈥 Alito writes. He then cites Brown, Barnette, and a third major decision, , which overruled cases tracing from the court鈥檚 so-called Lochner era in the early 20th Century that had protected individual liberty rights against a wave of federal and state health and welfare laws.
Alito鈥檚 citation of Brown in the draft opinion tracks a discussion of Plessy and Brown that he and other conservative justices engaged in during the Dec. 1 arguments in Dobbs.
鈥淪o suppose Plessy versus Ferguson was re-argued in 1897, so nothing had changed,鈥 Alito said to U.S. Solicitor General Elizabeth B. Prelogar, who was arguing in support of abortion rights. 鈥淲ould it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?鈥
Prelogar said Plessy was 鈥渆gregiously wrong鈥 on the day it was decided in 1896, but that the court had understood by the time of Brown that a factual underpinning in Plessy that separate but equal facilities did not create a 鈥渂adge of inferiority鈥 was mistaken.
鈥淚s it your answer that we needed all the experience from 1896 to 1954 to realize that Plessy was wrongly decided?鈥 Alito pressed Prelogar. She again said the court realized in Brown that the factual premise of Plessy was wrong.
鈥淪o there are circumstances in which a decision may be overruled, properly overruled, when it must be overruled simply because it was egregiously wrong at the moment it was decided,鈥 Alito suggested.
At the oral arguments, Justice Amy Coney Barrett said that part of stare decisis doctrine was that it was not an 鈥渋nexorable command and that there are some circumstances in which overruling is possible. You know, we have Plessy, Brown. We have Bowers versus Hardwick, to Lawrence.鈥 (The second set of cases referred to Bowers, a 1986 decision that upheld a state criminal prohibition against gay sodomy and a later ruling, Lawrence v. Texas, which overruled it.)
Justice Brett M. Kavanaugh, at the same arguments, said 鈥渉istory helps [us]think about stare decisis鈥 and 鈥渨hen you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed. If you think about some of the most important cases, the most consequential cases in this court鈥檚 history, there鈥檚 a string of them where the cases overruled precedent.鈥
鈥Brown v. Board outlawed separate but equal,鈥 said Kavanaugh, who also cited other cases that overruled precedent. If the court had adhered to precedent in Brown and the other cases he cited, 鈥渢his country would be a much different place.鈥
Mississippi Solicitor General Scott G. Stewart, defending his state鈥檚 restrictive abortion law and urging the overruling of Roe, told the justices at the argument that if the abortion question is returned to the people, the 鈥渄amage鈥 from such procedures will be reduced and 鈥渢hey can compromise and reach different solutions.鈥
鈥淏ut, if we don鈥檛 do that, we鈥檙e just going to have all this sort of damage, and at some point, it鈥檚 appropriate for the court to say enough, as it has in ... the great overrulings in Brown and in other cases.鈥
A teacher鈥檚 union president on the use of Brown in the argument
Randi Weingarten, the president of the American Federation of Teachers, said in an interview that she found Alito鈥檚 citation to the Brown decision in his draft opinion 鈥渧ery offensive.鈥
鈥Brown was about finding that people of color should have the same standing as white people in this country, and kids of color should have the same opportunity as white kids,鈥 said Weingarten, whose union in support of the abortion clinic in Dobbs. 鈥淲hat Roe is about is that women should have the same fundamental freedoms of what happens with their bodies as men.鈥
The union president, who is a social studies teacher by experience and also a lawyer, said she would have trouble teaching children about how this opinion, if it became the court鈥檚 decision, would fit into the principles of stare decisis and the court鈥檚 legitimacy.
鈥淚鈥檓 not sure how you would teach this to kids other than to say that the court had just changed its mind鈥 on a fundamental right, she said.
The American Civil Liberties Union in Dobbs in support of the abortion clinic that anticipated some of the conservative justices reliance on Brown in support of overruling Roe and Casey, including another of Alito鈥檚 arguments in the draft opinion, that continuing controversy over abortion undermines Roe and Casey.
The ACLU brief notes that Brown and Brown II, the 1955 decision that addressed remedies for racial segregation in the schools, were met with fierce resistance.
鈥淭his history鈥攄ecades of litigation to enforce the Constitution, often in the face of open resistance鈥 was no basis for overruling Brown,鈥 the brief said. 鈥淭he same is true of Roe and Casey.鈥
David D. Cole, the national legal director of the ACLU, said in an interview that the proper analogy under Alito鈥檚 logic in the draft opinion would be if the court had first ruled against segregated schools, and then overruled that with a decision endorsing 鈥渟eparate but equal.鈥
鈥淵es, constitutional decisions get overturned, but largely in the direction of expanding rights, not in the direction of limiting rights, and certainly not eliminating a long-held right,鈥 Cole said. 鈥淭hat鈥檚 what they would be doing here.鈥
Justice Sonia Sotomayor, during the Dobbs argument, noted that the Supreme Court in Casey had discussed Brown as one of a very few 鈥渨atershed decisions鈥 whose overruling would bring into question the court鈥檚 legitimacy.
鈥淪ome of them, Brown versus Board of Education it mentioned, and [abortion rights decisions] have such an entrenched set of expectations in our society,鈥 Sotomayor said. 鈥淚f people actually believe that it鈥檚 all political, how will we survive? How will the court survive?鈥
