In a few days, we’ll know if Samuel Alito’s leaked draft in Dobbs v. Jackson Women’s Health Organization will survive as the majority opinion and become the “law of the land.” Whatever happens, Alito’s draft will stand as one of the greatest and most courageous declarations by a Supreme Court Justice. It’s a purifying document, cleansing the Court of many wrongheaded and pretentious rationalizations in the past.
The opinion is prophetic – in the classical sense of the word. We often speak colloquially of prophecy as predicting the future. But in Scripture, prophets were not primarily clairvoyants, although some issued warnings of what might come (Jonah to the people of Nineveh), or statements of God’s great and good things (Isaiah about the coming of the Messiah).
A prophet, then, isn’t a fortune teller, but a truth speaker. He speaks to those enraptured by their own power, so wrapped up in their unchecked will as to commit grave wrongs. So did Nathan speak to David, Elijah challenge Ahab, Esther expose Haman, and John the Baptist condemn Herod. For his part, Alito (“rudely” his critics charge) exposes Harry Blackmun’s hubris in Roe v. Wade who concocted not only a “right” that has no warrant in history or the Constitution, but also an analysis of pregnancy lacking internal logic and bearing little relation to medical reality.
In Scripture, prophets were not known for circumspect language in declaring the truth. Elijah’s words were “as a flaming furnace.” Similarly, Justice Alito has long been noted for his embrace of the facts behind a case, as ugly or distressing as those facts may be.
In Stevens v. United States, for example, as the sole dissenter, Alito described the tortured screams of a kitten being killed in a pornographic crush video, though the majority struck down the congressional act forbidding such videos on First Amendment Grounds.
In Brown v. Entertainment Merchants Association, he wrote of video games in which:
Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown.
The Court struck down a California law that prohibited the sale of such games to minors (Justice Alito concurred only because part of the law was vague.)
And in Snyder v. Phelps, he recoiled against the majority’s shielding those who harassed parents’ burying their fallen son from taunts and signs such as “God Hates You,” “You’re Going to Hell,” “God Hates Fags,” “Semper Fi Fags,” and “Fags Doom Nations.”
More than any other Justice in recent memory – certainly more than Justice Antonin Scalia – Alito condemns the moral harm wrought by unduly rigid judicial reasoning: the moral harm of animal cruelty, of allowing juveniles to impersonate mass murderers, of permitting malicious persons to turn a father’s grief into agony, or, in the case of United States v. Alvarez, of giving a free pass to those stealing the honor of fallen heroes by pretending to be a Medal of Honor holder.
Terming abortion “a profound moral question,” Alito goes again to the root of what the purpose of law is.
In Dobbs, Alito’s tone stems from his umbrage at those of his fellow justices who have forsaken their calling for power, even enshrining such power in solipsistic formulas such as Justice Kennedy’s “mystery passage….”
The above comes from a June 21 posting on The Catholic Thing.