The true import of the Alito draft
In their screaming hysteria about Justice Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, our Progressive friends fail to grasp the full import of that decision.
Hint: It's not about abortion.
Hint: It's only incidentally about Roe v Wade.
What makes the decision so significant is that it's not even just about the Constitution; instead, even more specifically, the Alito draft is about the Supreme Court's constitutional jurisprudence. (You can read the full draft here.)
The Alito draft's essential role is to clarify the distinction between legislation and adjudication. This is not rocket science. Legislation's role is to create law. Adjudication's role is to resolve disputes.
A dispute is a disagreement as to either facts or law or both.
An adjudication therefore always has three components: (1) a recitation of the facts underlying the dispute, (2) the correct principle of law to be applied to the underlying facts to reach the specific outcome, and (3) the specific outcome of the adjudication (i.e., the grant or denial of specific relief).
The applicable principle of law is known as the "rationale" of the decision or, in classic legalese, the "ratio decidendi." Search for it; you'll get lots of hits.
The ratio decidendi is the fundamental distinction 'twixt adjudication and legislation. Adjudication requires a ratio decidendi; legislation does not.
Moreover, only appellate cases have precedential value, and that precedent lies in the ratio decidendi, not the facts or the outcome. It is "black letter law" that a court decision with no ratio decidendi has no precedential value. The only thing that can have a precedential effect is the opinion from a majority of an appellate court's justices on a point of law that, in turn, logically mandates a case's outcome.
In his Dobbs draft, Justice Alito observes that the Roe v. Wade decision has no ratio decidendi. Thus, in paragraph three, he writes:
Although the (Roe) Court acknowledged that States had a legitimate interest in protecting "potential" life, it found that this interest could not justify any restriction on pre-viability abortions. The court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe's reasoning. One prominent constitutional scholar wrote that he "would vote for a statute very much like the one the Court ended up drafting" if he were a "legislator", but his assessment of Roe was memorable and brutal: Roe was "not constitutional law at all and gave almost no sense of an obligation to try to be."
In paragraph 12, Justice Alito further hammers the point: Roe constituted an "abuse of judicial authority" with reasoning that was "exceptionally weak."
Roe has no ratio decidendi. It is legislation, not adjudication, and has no precedential value.
This by itself would be enough to generate all the screaming hysteria, but there's more. In paragraph 9, Justice Alito states the legal formula for holding that an alleged right is a constitutional right. The alleged right at issue must be either explicitly enumerated or clearly implied in the Constitution's text, or it must be "deeply rooted in this nation's history and tradition" and be "implicit in the concept of ordered liberty."
When the implications of that are fully grasped, there will be weeping and gnashing of teeth. The masquerade of legislation as adjudication has been upset.