Alito’s draft opinion insults Kennedy’s legacy — will Gorsuch and Kavanaugh sign on?

Supreme Court Justice Samuel Alito’s recently leaked draft opinion shows there is still reason for hope that the constitutional right to abortion can survive. That may seem counterintuitive. But not when you consider how far over the top Alito had to go to try to justify overturning Roe.

Alito acknowledges that to overturn the right to abortion, it would have to be “egregiously” wrong, “a serious matter.” So, he unloads in the most disrespectful way on retired Justice Anthony Kennedy and the 15 other Justices who — over the last 50 years — wrote, applied or reaffirmed Roe v. Wade and Planned Parenthood v. Casey.

But Kennedy was not only the co-author of Casey.He was the mentor of Justices Neil Gorsuch and Brett Kavanaugh. Without him, they almost certainly would not be members of the court today. And it is now painfully clear that if they sign the leaked draft, they will destroy Kennedy’s judicial legacy. They should have second thoughts, and third, too.

Gorsuch and Kavanaugh’s close relationship with Kennedy

For an ambitious law student, nothing beats a clerkship for a Supreme Court Justice. That is as true today as it was in 1992, when Kennedy selected Gorsuch and Kavanaugh as his law clerks for the Supreme Court’s 1993 term. The mentoring did not stop there.

When Donald Trump became president, he was determined to reshape the court. Not content with the vacancy that existed because the Republican Senate had refused to confirm President Barack Obama’s nominee, Merrick Garland, he wanted a second opening to fill. His White House put in motion a plan to persuade the 81-year old Kennedy to resign his lifetime appointment. Trump reportedly selected Gorsuch for the Garland vacancy to show Kennedy he could feel comfortable retiring. Trump even indicated he would replace him with yet another of his former law clerks, to whom Kennedy was very loyal. When Kennedy resigned, Trump nominated Kavanaugh to succeed him.

Kennedy’s Legacy of protecting liberty rights, including abortion

The last time there was a major attempt to overturn Roe was in Casey in 1992, the year before Gorsuch and Kavanaugh clerked for Kennedy. Many assumed Kennedy, a very conservative jurist, would reject Roe. But he had the courage and the wisdom to join two other Republican-appointed Justices, Sandra Day O’Connor and David Souter, in an opinion that upheld Roe, 5-to-4, and persuasively refuted the arguments for overturning it. They explained that even though some of them “as individuals find abortion offensive to [their] most basic principles of morality,” their “obligation [was] to define the liberty of all, not to mandate our own moral code.” They recognized that “freedom from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear” a child, is “central to personal dignity and autonomy,” to “liberty protected by the Fourteenth Amendment,” and to women “participat[ing] equally in the economic and social life of the Nation.” Overturning Roe, they warned, would cause “profound and unnecessary damage to the court’s legitimacy and to the nation’s commitment to the rule of law.”

More than two decades later, in 2015, in Obergefell v. Hodges, Kennedy wrote the opinion for the Court’s 5-to-4 majority that established a constitutional right to same-sex marriage. Kennedy rejected the argument that our constitutional right to “liberty” should be narrowed to exclude unenumerated rights not expressly mentioned in the Constitution. He emphasized, “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” Then again, the following year, in Whole Woman’s Health v. Hellerstedt, Kennedy joined the 5-to-4 majority that reiterated that the Fourteenth Amendment protects the right to abortion.

These decisions, for which Kennedy supplied the crucial vote, are central to his prominence as one of the most important guardians of our constitutional liberties.

Alito’s untenable attack on the justices who recognize unenumerated liberty rights

In his leaked draft, Alito repetitively claims that Roe’s “concocted” conclusions were “far outside the bounds of any reasonable interpretation” of the Constitution, “ignored or misstated” the history, “usurped the power to address [the] question of” abortion, and were an “abuse of judicial authority.” He piles on by saying that Roe’s “unfocused” analysis “ranged from the constitutionally irrelevant” to “the plainly incorrect.” He also insists that Kennedy’s Casey opinion “perpetuated Roe’s errors,” and “went beyond this Court’s role in our constitutional system.”

Stooping to such extreme hyperbole does not make it true. Joining it would unjustly impugn the integrity and thoughtfulness of many well-respected justices — conservatives and liberals alike — whose decisions fall squarely within the long-recognized and accepted understanding of our Constitution.

To put Alito’s attacks into perspective — many of which more accurately apply to his own leaked draft, not Roe or Casey — if there was ever a judicial Hall of Fame of the most eminent and conscientious justices, most of the judges he takes down in his draft would be unanimous selections. Alito’s hubris is boundless. Ten of the targets of his ire are Republican appointees, including Justices Kennedy, O’Connor, William Brennan, Potter Stewart, Lewis Powell and John Paul Stevens. The other six, Democratic appointees, include Justices Thurgood Marshall, Ruth Bader Ginsburg and three current Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Gorsuch testified at his confirmation hearing that Roe was the “law of the land.” He did not say it was one of the rarest of cases that should be overturned. Nor did Kavanaugh when he called it “settled law”.

Will they sign their names to overturn Roe and Casey? Will they sign their names to characterizing Kennedy as not just egregiously wrong, but as a “usurper” who “abused” and improperly “arrogated” judicial authority on one of the most important questions ever to come before the court? Will they sign on to such baseless assertions about the justice they worked for and who played such an important role in advancing their careers?

Michael Dell is a New York lawyer who represents women who seek to preserve the right to abortion, including in amicus briefs in the last two major Supreme Court abortion cases.