Reading Justice Alito’s (draft) Supreme Court Opinion

The defining characteristic of a good judge, either on the Supreme Court or as a child adjudicating a fight, is that they are impartial. A bad judge isn’t necessarily one who doesn’t have a bias, but one who doesn’t work tirelessly to remove it.

From an early age we become very sensitive to bias or injustice. Even dogs will fight if they notice a prejudicial allocation of food.

Part of adulthood is disciplining ourselves to adjudicate conflicts in our life without making things personal or dissembling through all manner of what-about-isms.

Judge unto others as you would want to be judged.

In our adult world, court decisions end up as law and for this reason, all decisions are carefully recorded. These written decisions allow us to judge for ourselves if the judge ruled without bias. We can’t change the judgement but we can change our expectations of what to expect from our judicial system.

To look at the abortion issue with less emotional baggage, let’s imagine a hypothetical. Let’s pretend as if we’re attending a school with 52 classrooms.

In our classroom everyone is given a hamster according to their gender. Girls get female hamsters; boys get male hamsters. We can keep our hamster in our box until the end of the school year, or we can let them play with other hamsters.

If a girl lets her hamster play with the boy’s hamster and her hamster gets pregnant she can have the school vet perform an abortion.

However, that school-wide rule is relatively new. Years ago, each class teacher could decide if the girl could get an abortion for her hamster. Some classroom teachers allowed it; some didn’t.

Recently, the school board has decided to return the power to permit an abortion back to each classroom’s teacher.

Before I get to that decision, let me point out something that should be obvious to anyone. When hamsters have babies the boys generally do not spend as much time and effort raising them as the girls. Therefore, most girls will end up spending more time with the baby hamsters than they would doing other class projects or trips. Whether or not raising a baby hamster is worth those difficulties is debated endlessly, but no one disputes that simple fact.

No reasonable person would argue that a woman wanting to pursue life, liberty and justice, as they define it, could do so, with a baby, with the same equality as a man. For example, Mrs. A___ trying to study and pass law school exams would be at a disadvantage, compared to Mr. A___, if he decided child-rearing was not his responsibility.

Back to our school analogy!

The school board begins.

Abortion presents a profound moral issue on which Americans hold sharply conflicting views.

Agree. Then, in the second sentence:

Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life

Doesn’t a good judge work hard to remove bias from his judgement? That is the second sentence!

The girls and boys ask why the board put in those words “fervently” and “innocent”. What does it mean for a teacher to fervently believe hamster pregnancies shouldn’t be aborted?

Why did the judge give them an emotional plug for their feelings? Shouldn’t the feeling of both sides be equal? What judicial purpose does the word “fervent” serve?

Then “innocent”? Isn’t that categorically implying that abortions are evil? We accept that soldier might kill a soldier and both go back to their lives without judgement once a war is ended. Does anyone who ends an “innocent” life, in any capacity, ever become viewed as anything but evil?

The students ask, why didn’t the board just write the following?

Some believe that a human person comes into being at conception therefore abortion ends a life

Everyone agrees that if one believes life begins at conception then one would believe abortion ends a life. The issue is when life begins. What does “fervent” or “innocent” have to do with it?

In the second sentence even young people would wonder if the board is prejudicial. Some girls, we can expect, would be very angry that board has implied they are evil because only evil people would abort an innocent life.

Onto the third sentence where the board generalizes the position of those on the other side of the debate.

Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality.

For other side, the board doesn’t use emotionally charged words like “fervent” and “innocent”. Instead, if crams in a abstract arguments around “regulation”, “right to control her body” and “achieving full equality”.

In the first argument the board is prejudicial. In the second argument the board is willfully obfuscating the issue — or making the other side seem cold and heartless. Why didn’t they write the following:

Others believe that life does not begin at conception therefor abortion does not end a life.

Let’s leave my pretend world and look at those statements from Justice Alito.

Justice Alito, by sowing emotional prejudice and confusion, from the opening paragraph, makes it impossible to dispute the end-decision because there never was a place where the arguments were fair and non-prejudicial.

Page after page, Justice Alito cherry-picks whatever cases, commentaries and historical writings he chooses to defend his decision to make abortion a question for each State to decide. That is just my reading; yours may be different.

Standing back for a moment, I believe a very good case can be made, net-net, that the Federal Government should not make laws about abortions. That case was not made here. My take-away is that Justice Alito is prejudicial in his language and political in his arguments.

I leave you with one of my favorite paragraphs where Justice Alito argues that America had better laws in the past. So I expect in the future he’s capable of defending a return to slavery or who knows what.

I can’t change anything. I did not write this to argue what laws we should have about abortion.

I can only give you my view that the Supreme Court, based on this one document, is not focused on judging fairly and impartially. Has this always been the case?

Contrast the current Supreme Court’s writing with that during Roe Vs Wade in 1972. Read how carefully and respectfully the court writes about the issue.

Perhaps in that regard Justice Alito was correct. Past Supreme Courts were better.



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