When Politico leaked the United States Supreme Court draft decision Monday that would overturn Roe v. Wade and leave the legality of abortion up to individual states, Margaret Marshall was shocked.
“I had two initial reactions,” the former Chief Justice of the Massachusetts Supreme Judicial Court said on Boston Public Radio Friday. “The first was stunned that a draft opinion had been leaked. It just doesn't happen. … And the second was, as I started reading the draft opinion, I was shocked at the language that Justice [Samuel] Alito is using.”
Alito wrote the draft opinion, which Chief Justice John Roberts has confirmed as authentic.
Marshall has written many court opinions in her career, but is best known for the landmark 2003 Goodridge v. Department of Public Health ruling, which made Massachusetts the first state in the nation to recognize same-sex marriage as a fundamental right.
“There are many ways that one can write an opinion,” she explained. “But particularly when a justice knows that an opinion will be deeply divisive to large parts of our nation, whichever side it is, at least it had been my practice … to pay respect to the other side.”
She recalled writing the decision legalizing same-sex marriage. “I think we worked very hard to make sure that we were explaining to the people of Massachusetts the legal basis for our disagreement,” she said. “There were no personal attacks.”
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Marshall contrasted her approach with Alito’s line in the leaked draft that stated “Roe was egregiously wrong from the start.”
“Those are terms that we have used only with some of the great mistakes that the court has made,” Marshall said. “The Dred Scott decision; Plessy against Ferguson saying in racial issues separate is equal, not separate is unequal; the decision upholding the internment of Japanese citizens in the United States — I mean those are egregious from the beginning. This was not egregious from the beginning.”
Marshall said the draft opinion raised more questions.
“I was left with a feeling about, ‘Why is this man so angry and why is he spewing his vitriol across this nation?’”
The former chief justice also took issue with Alito’s reasoning, which many worry opens the door to overturn other rights. Alito argues in the draft decision that the right to privacy does not protect abortion, as ruled in Roe v. Wade. But he adds that this logic would not extend to other issues protected by the right to privacy, including access to birth control or same-sex marriage.
“When the United States Supreme Court, in particular, but any court, says ‘this is a one off… it won’t be repeated anywhere,’ it is never a one off,” Marshall said. “Never believe when a judge says ‘This is a one off,’ because we work on a system of precedents.”
Another problem Marshall has with the draft opinion involves Alito’s argument that abortion is not mentioned in the Constitution, and that additional rights “must be ‘deeply rooted in this Nation’s history and tradition.’”
“All kinds of things are not ‘deeply rooted’ in our nation's history and traditions,” she said. “Little by little by little, excluded groups have pushed their way through precisely because they were not part of the deeply rooted traditions. And so when Justice Alito uses that phrase, it essentially in one sentence, wipes out everything that we have achieved.”
Marshall recalled her ruling in favor of same-sex marriage. "Believe me, gay marriage was not deeply rooted in anything," she said.
Alito’s language about U.S. tradition also prompted Marshall to reflect on her legacy as the first woman to serve as chief justice of the Massachusetts Supreme Judicial Court.
“We've come a long way,” she said. “I stand on the shoulders of generations of women, generations of women. And for a justice of the Supreme Court to say, ‘We're not going to recognize any rights that are not deeply rooted in our traditions and history.’ I can't imagine what that feels like to African Americans, or to women. I feel it intensely as a woman.”
