The Dissenters Say You’re Not Hysterical

“The majority tells everyone not to worry,” the dissenting justices write. But they’re ringing the alarm.

Photo-Illustration: Intelligencer; Photos: Getty Images
Photo-Illustration: Intelligencer; Photos: Getty Images

“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan write in what is by any standards, but especially the mealymouthed norms of today’s Supreme Court, a blunt and righteously angry document.

A judicial dissent is by definition a loser’s game, and there are only three losers left to speak on today’s Supreme Court as six justices eviscerate reproductive freedom for millions of Americans. That doesn’t mean a dissent is meaningless.

When the majority opinion authoritatively tells us not to believe what is happening in front of our own eyes (or what will happen next as a result of its decision), when it sets terms that erase the impact on actual people’s lives — it helps to have something in black and white that says to the public, You are not crazy. This is what the 66-page dissent by Breyer, Sotomayor, and Kagan does.

The authors took evident care to make themselves as clear as possible to the public and not just to the legal elite. A by-product of a draft majority opinion leaking in May is that they also respond not only to their conservative colleagues but to the national conversation since then, including the claim that liberals are being hysterical about the ramifications of Roe being overturned.

“We cannot understand how anyone can be confident that today’s opinion will be the last of its kind,” the dissenters write. You are not overreacting, they say, if you have understood that “a State can of course impose criminal penalties on abortion providers, including lengthy prison sentences” and that “perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion.” You do not mistake the logical next steps when you worry that, as the dissenters put it, “after this decision, some States may block women from traveling out of State to obtain abortions, or even from receiving abortion medications from out of State. Some may criminalize efforts, including the provision of information or funding, to help women gain access to other States’ abortion services.” You are correct to worry about birth control: “The Court may face questions about the application of abortion regulations to medical care most people view as quite different from abortion. What about the morning-after pill? IUDs? In vitro fertilization? And how about the use of dilation and evacuation or medication for miscarriage management?”

If it doesn’t make sense to you that such a decision so life-altering for at least half the country is, in the words of Justice Brett Kavanaugh’s concurrence, “scrupulously neutral,” the dissenters say you are correct. The Court, they say, “is instead taking sides: against women.” If you think the Court’s decision today is a product of political maneuvering and decades of ideological strategy, the dissenters come out and say it: “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.”

If the test that the majority opinion constructs for whether abortion can be banned in half the states — whether it is rooted in the tradition of the 14th Amendment — strikes you as a rigged game, you are not alone. The dissenters, in unusually damning language, bury originalism. “Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights,” they write. “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.”

If you’re worried about whether other decisions that rely on the same reading of the 14th Amendment to ensure the rights of disfavored people are next, you aren’t wrong. “The majority tells everyone not to worry,” they write. “It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.)”

For all its truth-telling, dissents from these lifetime-appointed judges get you only so far. Despite the fact that the dissenters say the majority’s opinion “reveals how little it knows or cares about women’s lives or about the suffering its decision will cause” and “undermines the Court’s legitimacy,” just last week Sotomayor praised Clarence Thomas for being “a man who cares deeply about the Court as an institution, about the people who work there.” And next week, they’ll be back to releasing more opinions and then off to vacation.

The Court has returned to almost all of its in-person rituals suspended during COVID, except for the handing down of opinions from the bench. There, the author of a majority opinion would summarize it in plainer terms, and, in rare situations, a dissenting justice would speak in protest. Whatever the reason Chief Justice John Roberts hasn’t restored this tradition, it means the justices in the majority, all appointed by Republicans, don’t need to listen to their colleagues’ furious voices. But they do need to read them. The majority most certainly does not care. But history will know that someone told the truth.

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The Dissenters Say You’re Not Hysterical