'Roe isn’t the first instance of settled law that Alito overturned the moment he had the votes.' MsReads via TheProspect
Associate Justice Samuel Alito sits during a group photo at the Supreme Court, April 23, 2021.
This grim parallelism begins with these justices’ affinity for overreach. The issue before the Court in the Dred Scott case was whether Scott, an enslaved Black man then living in the slave state of Missouri, could petition the Court for his freedom, as he had lived for years in the free state of Illinois and the free territory of Wisconsin.
Consider, for instance, Alito’s war on unions. In a 2012 decision in the Knox case, the Court ruled that a public employee union should not have assessed dues on nonmembers for its campaign against two referendums that were on the California ballot. In his opinion, however, Alito opined that the unanimous decision of the Court in 1977 in the Abood case was wrong and invited briefs asking the Court to overturn it.
So Roe, a decision supported by seven of the nine justices in 1973, isn’t the first instance of settled law that Alito overturned the moment he had the votes. Abood was a unanimous decision—supported not just by Thurgood Marshall and William Brennan, but also by William Rehnquist and Lewis Powell—that also fell to the Alito axe. What had changed wasn’t the legal legitimacy of requiring workers to pay unions a fee for the raises that unions won for them.
On the Court, Clarence Thomas has become the champion of pushing social reaction to ever more outrageous legal extremes; he’s reliably the Court’s right-wing id. Make no mistake, though: This is Samuel Alito’s Court. He lines up cases that will push the nation rightward when the moment is ripe, and eschews judicial incrementalism, much less any interest in stare decisis, when he has the votes.
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