The Legal Beat
Yale Law School’s Akhil Reed Amar took to the pages of the Wall Street Journal to gently explain why Samuel Alito’s leaked Dobbs draft is entirely reasonable and legal. And you can believe him too because, as the Wall Street Journal editors gleefully note in the article’s sub-heading, Professor Amar is a “pro-choice Democrat.”
As the professor concludes that the Constitution never protected reproductive rights to begin with and that “there is nothing radical, illegitimate or improperly political in what Justice Alito has written.” It’s a bizarre take on its merits, because as many have noted, there were innumerable paths Alito’s draft could walk to gut Roe without disrupting the whole concept of settled precedent by claiming the case was wrong when decided off the strength of a 17th century opinion letter from the guy who invented the spousal rape exception. Alito’s draft opinion didn’t cast Roe as an overreach as opposed to other constitutionally protected rights, but instead built out the intellectual infrastructure for future assaults on everything from marriage equality to contraceptives.
In other words, there’s a hypothetical, muted Dobbs opinion that could earn a (still wrong) mealy-mouthed liberal defense as non-radical and “legitimate” and… this ain’t it, bub.
This WSJ op-ed isn’t “bold” or “surprising” as much as the paper might want to spin it. This op-ed was getting written no matter what, the only question was which “Liberal Law Professor”TM would sign it. Because for that self-described category of legal academics, every broadside against any group’s constitutional rights triggers the following exchange:
And the op-ed accomplished its goal. John McCormack of the National Review blasts out select passages — in particular that conclusion — under the heading “Liberal Yale Law professor Akhil Amar: ‘there is nothing radical, illegitimate or improperly political in what Justice Alito has written.'” Professor Amar probably thought he wrote a “deep” and “nuanced” take that shouldn’t be converted into a one line soundbyte to be repeated the same way — and by the same audience — as you’d hear the phrase, “some of my best friends are Black.”
I’m not doubting that Professor Amar genuinely has issues with Roe, but it’s the naïveté required for someone to think “I should help whitewash this on behalf of Rupert Murdoch’s drones because there’s no way this will come back to haunt me on issues I do care about!” The Supreme Court may use the importance of their written opinions to gaslight people, but in the ideal world it’s true… unlike legislation, for court rulings it’s not just the result, it’s what the opinion justifies. And airing technical beefs with a 1973 opinion doesn’t require rubberstamping the claim that constitutional rights are forfeit if five justices can point and say white dudes in 1787 might not have agreed.
Amar’s claim that contraception and interracial marriage are safe “because the freedoms recognized in these cases were ‘deeply rooted in the Nation’s history and tradition'” is certainly news to historians. That his defense of LGBTQ rights is that it’s fundamentally a gender equality issue (which reproductive rights… aren’t?) and that — I’m not making this up — “Later drafts of Justice Alito’s opinion will likely need to take equality issues more seriously” borders on the horrific.
In the context of this op-ed, it’s akin to saying, “I’m an aeronautics expert and I wholeheartedly endorse the safety of this plane… though later models will likely need to include wings.”
Remember that Professor Amar was an early passenger on the “I’m a liberal and Brett Kavanaugh is awesome” train too. You’d think Amar would have learned his lesson after realizing he was played for a chump on that one and yet here he is running face first into the buzzsaw again. But his latter day recognition that staking his academic reputation on Kavanaugh might have been a mistake came too late — we were talking about the problems with Justice Frat Bro long before Amar expressed second thoughts.
It’s a compulsion for these professors. This is an interesting companion to today’s piece on Jonathan Turley’s unending quest to leverage his “I didn’t vote for Trump… I just provide legal cover for his abuses” reputation to ingratiate himself in right-wing circles, but Turley seems self-aware at this point. This op-ed reads like Amar honestly doesn’t get that he’s just a fifth column for the people who want to undo the whole bundle of policies a “pro-choice Democrat” supports.
Is it really a side effect of living the cloistered academic life? Seeing the world as a collection of abstract positions to be mentally cabined off of each other? I dunno. All I know is the same crop of law professors show up every time there’s a turning point in America’s constitutional order to say, “move along, nothing to see here.”
It might be that these law professors aren’t really liberal to begin with. Or it might be that their liberalism only extends to the issues they’ve decided matter to them.
I guess we’ll find out if the Court ever goes far enough that we see one of these op-eds titled “Whoops, I Did NOT See That One Coming.”
Subtitle, of course, “But here’s why I still think we should give this Court the benefit of the doubt.”
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.