“Deeply rooted in this Nation’s history and tradition”

The Bad History in Alito’s Draft Overturning Roe v. Wade

I’ve read only part of the leaked opinion by Supreme Court Justice Alito, showing the court majority’s decision to overturn Roe v. Wade, with horrible immediate consequences for the freedom and equality of people in many states, and horrible longer-range consequences and ramifications for freedom and equality generally in this country. What’s already struck me, and what I know has struck others who study the country’s history, is this definition:

The Due Process clause of the Fourteenth Amendment  . . . has been held to guarantee some rights that are not mentioned in the Constitution, but any such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” . . . The right to an abortion does not fall within this category.

For precedent, Alito cites Washington v. Glucksberg—that’s the source of the material in the quotation marks above. In that 1997 decision, the court came up with what Justice Kavanaugh has called “the Glucksberg test,” a concept that the legal right wing has adopted as the standard for determining which if any rights not enumerated in the Constitution are protected and which are not.

In 2018, the writer Ian Millhiser pointed out in a ThinkProgress article that in his confirmation hearing, Kavanaugh asserted that “all roads lead to the Glucksberg test,” from which Milhiser deduced—correctly, we now know, if we didn’t before—that Kavanaugh was eager to overturn Roe v. Wade. Millhiser also noted that in a 2017 speech, Kavanaugh had already explicitly connected the Glucksberg test to the idea that the Roe case had been wrongly decided. All of which Senator Collins either didn’t notice or care to notice, or pretended not to notice, when she claimed she’d reject any nominee who would overturn it.

Many of us are used to the “originalist” notion that nothing not explicitly stated in the Constitution can be constitutional. James Madison originated that brand of constitutionalizing when attacking Alexander Hamilton’s plan for a national bank. Madison didn’t believe in the theory—because it’s absurd—and went back on it when he was president.

But the situation Kavanaugh was asked about is more nuanced. The question and the answer admit that some rights not mentioned in the Constitution may actually be protected anyway. But which ones? How can we know? What’s the test?

The Glucksberg Test—of course.

Justice Rehnquist’s opinion in Washington v. Glucksberg actually does say what Alito, in the quotation above, says it says. But it says more. Here’s Rehnquist:

. . . the Court has regularly observed that the [Due Process] Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition,". . . "so rooted in the traditions and conscience of our people as to be ranked as fundamental". . . and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed."

Note, though, that the quotation marks persist. That’s because in 1997, when establishing the so-called Glucksberg rule, Rehnquist was using language that wasn’t original to his opinion, either. He too was citing earlier decisions, as judges do. (When quoting Rehnquist, Alito says “internal quotation marks omitted,” though you’d think they might be relevant here.)

The only thing original with Rehnquist in 1997 is the word “objectively.” I guess that one word enshrines the Glucksberg opinion as a rule. Which means there’s really no Glucksberg test, aside from the objectivity idea, slipped by Rehnquist into the much older judicial material on deep-rootedness that his Glucksberg opinion quoted. So maybe we have to look for a Snyder test? Or a Palko test? Because those are the two underlying opinions that Rehnquist was actually quoting, in the very part where Alito has quoted Rehnquist. (Alito directly cites Snyder and Palko too, though only in footnotes.)

So back we goofballs who aren’t lawyers have to go, to Snyder v. Massachusetts (1934), and to Palko v. Connecticut (1937), to find out what all this stuff about deep rootedness and history and tradition and so forth might really have meant, back when it might have really meant something.

In his opinion in Snyder, Justice Cardozo says this (and hey, it’s not in quotes!):

The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless, in so doing, it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.

Cardozo backs that statement up with reference to, among many others, Twining v. New Jersey (1908). That decision was, as Alito also notes in another context, overturned. I don’t think Alito notes that it was overturned for denying federal protections for due process.

And it’s in Palko—also overturned for denial of due process—that Cardozo uses the term “ordered liberty,” quoted by Rehnquist in 1997, and by Alito when quoting Rehnquist in the leaked draft. In Palko, Cardozo also quotes himself, from Snyder:

The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, supra, p. 291 U. S. 105.

But wait. A principle so rooted in the traditions and conscience of our people as to be ranked as fundamental? That’s a rule?

I mean—ranked by whom? How? And the conscience of which of the people?

Not of the very essence of a scheme of ordered liberty? Who decided what’s of the “very essence” of such a scheme? When?

But they knew what they meant. It was just a gut thing back then. All of the phrasings that contribute to the so-called Glucksberg test that Alito and Kavanaugh and the others invoke hark way back to a time when only one kind of person had the job of custodian of the shared political reality. It was that kind of person's tradition and history that the old judges cited by Alito were talking about.

In these early Fourteenth Amendment cases, though, they’d clearly become unsure of how to do their custodial job and were groping for rules based on the moods of their own custodianship. Alito’s draft thus ends up citing a precedent that itself quotes old, overturned decisions denying federal protections for trial by jury and federal protections against self-incrimination. Along with Kavanaugh’s and others’ elevating such discredited stuff as the basis for a so-called hard-and-fast test (or maybe they want to deny those federal protections too?), all of this chatter suggests to me that the roots of the deep-rootedness run pretty deeply into an Anglophile national fantasia wrapped in a wishful oratory, all framed in the passive voice: “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” I know the Fourteenth Amendment presented judges of the early 20C with some major quandaries regarding asserting rights of citizens against the states, and maybe they did the best they could, but my little jaunt through a few of the precedents for Alito’s precedents tells me that those judges didn’t hit any bedrock for determining—objectively!—which rights are and aren’t federally protected against the states. For all of the learned reference going back to and before Magna Carta, this kind of appeal to history is precisely non-objective, subjective, even national-mythopoetic, even racialist.

I guess that’s why in the Roe opinion, Justice Blackmun did a similar kind of delving into old common-law traditions. Within what had become a somewhat desperate judicial exercise of draping all things Fourteenth Amendment in supposed tradition, he was hoping to show that an early-term abortion—deeply rooted in the spirit of our supposedly ancient heritage—was mainly un-indictable.

Blackmun may have been right about the history—Alito says he’s wrong about it, so round and round we go—but maybe this entire history-based approach can’t help us now. In making an appeal to the national spirit of a people, the question Which of the people? might not have occurred to certain judges born in the 19C into a certain class, and that’s too bad, but it's at least somewhat understandable. Much more grimly revealing are the bases and nature of the so-called rule that Alito and Kavanaugh and the others are now invoking for this century. Their rule is to rule out—out of their definitions of history, tradition, and ordered liberty—the decades since 1973. And their rule is to rule out of “our people” all of the people who aren’t with them politically on this issue.

I’m only one of many people who think that laws preventing those who may become pregnant from controlling their own reproduction do violate elements “implicit in the concept of ordered liberty,” “such that neither liberty nor justice can exist if those elements are sacrificed.” Alito doesn’t think so. We have a difference of opinion, but his is based on a deeply rooted tradition of calling the many people I’m talking about not just wrong on the issue but beyond the pale of the discussion, and he and his cohort have a bizarre power to enforce not just their opinion but the exclusionary view on which that opinion is based. All I could do on this bad day is try and get a look at what ammo Alito is bringing to backing up his opinion, and in the end he doesn’t back it up at all. He takes his conclusions as given. The reasoning is circular.

Citing legal precedent is what lawyers and judges do. But when citing precedent means making airy, groping appeals to some narrowly hegemonic national spirit, supposedly moving in history, the whole purpose of history goes chillingly wrong, and the whole idea of a precedent, invoked so sententiously in the legal profession, turns into a sick joke.