Vincent Bonventre, an expert on the U.S. Supreme Court and a professor at Albany Law School, said the draft Supreme Court opinion that would overturn Roe v. Wade is off-base when it claims that the right to an abortion is not enshrined in the Constitution.
The draft opinion, which was written by Justice Samuel Alito Jr., was leaked to Politico, which published it.
Bonventre explained that the logic used by Alito in the opinion could be used to reverse a vast number of other landmark decisions, going back to Brown vs. Board of Education, which barred racial segregation in schools, along with others expanding gay rights and protecting equality in other ways.
Chief Justice John Roberts, who has ordered an investigation into who leaked the document, said it is authentic but could still change.
On an episode of the Miranda Warnings podcast, from the New York State Bar Association, Bonventre said he doesn’t think Alito could possibly believe that he is making a well-reasoned argument.
Bonventre said, “You know one of the first things I teach my students is I read to them what James Madison said that a lot of you are worried that if we put a Bill of Rights in the Constitution, some people are going to say, ‘Well this right isn’t in there so that people don’t have it.’ For someone as smart as Alito to say that, he knows it is nonsense.”
Bonventre and Liz Benjamin, managing director at Marathon Strategies, had a lively conversation about the legal and political implications of the draft opinion and the leak with podcast host David Miranda, the New York State Bar Association’s general counsel.
Bonventre pointed out that Alito writes that: ‘There are rights this court recognizes but they’re part of the tradition of this country.’
“Like what?” Bonventre asked sarcastically. “Like racial segregation, like treating women as second-class citizens, like forbidding interracial marriage, like forbidding contraceptives, or any kind of sex other than for the purpose of procreation?”
Benjamin said the biggest concern is that additional rights could be undone should Alito’s draft remain intact. She felt that the opinion was written along ideological lines and has further undermined the perception of the Supreme Court as an apolitical body.
Miranda called the Alito opinion a “political power play” which would be detrimental to the reputation of the Supreme Court, where the conservative Republican majority is out of step with most Americans.
“The implications for the future of the court and the court’s decisions being seen as a serious entity has really taken a blow,” said Benjamin. “Anybody who thought it was not a political entity was living under a rock, but the veracity of and the gravitas of its proceedings and its decisions, I think, certainly have been called into question.”
Bonventre said that he would not be surprised if the tenor of the draft, in this case, Dobbs v. Jackson Women’s Health Organization, is changed, and perhaps the scope of it is reduced so that it does not undermine other rights.
Benjamin, however, said she felt that the leak had put the justices “between a rock and a hard place” and that switching their positions or tweaking the draft significantly could earn them the rebuke of the conservative establishment.
Both agreed that the politicization of the court has taken place over the last few decades. Bonventre lamented the quality of candidates put forth by both parties.
“The current court is so partisan. It is not a matter of ideology, it is not a matter of judicial philosophy, it is partisan. Look at the way they vote, they vote like Republican politicians,” Bonventre said.
Benjamin said that despite the bleak prospects facing the court, she still hopes for change.
“I have a sliver of hope that someone like Roberts will get on—someone who got on and did things people were surprised about and said ‘Oh man, the man is an independent thinker,’” Benjamin said. “You can see that Roberts feels it’s important that the court does not in fact go down the rabbit hole of becoming a MAGA court or the conservative court. But we will see what happens, hope springs eternal that once you get on, you will start thinking for yourself.”