Prime Only Members-Only Article

Alito’s Opinion is Traditionalism Masquerading as Originalism

|
May 3, 2022 7:49 p.m.
THE BACKCHANNEL
FREE EDITION
Your subscription could not be saved. Please try again.
Your subscription has been successful.
NEW!
A FREE email newsletter from Josh Marshall An email newsletter from Josh Marshall

It’s long been a truism that the precedents that would need to be toppled to overturn Roe v Wade would put in jeopardy or remove the underpinnings of rights to contraception, same sex marriage and a whole range of reproductive, erotic and matrimonial autonomy and freedom this country has long taken for granted. This is based on the jurisprudence of a “right to privacy” which is the basis of numerous court decisions going back to the 1960s. In a way it is antiseptic and structural. To do away with Roe you need to do away with the right of privacy and doing away with the right of privacy means a whole raft of other decisions fall. But reading Alito’s decision he didn’t want to leave it to that. He dismisses the privacy jurisprudence out of hand and then focuses his argument on these rights not being “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

Real Independence
Made Possible By Members

FREE community-supported memberships are available to students and those experiencing financial hardship

Most Popular
Prime
$60/yr
$60/yr
30% off!
Access to Member-Exclusives and Fewer Ads
Get Prime

    Also Includes:

  • The Hive Member Forum
  • Members-Only Newsletter
  • RSS Feeds
  • Commenting
Prime
$5.99/mo
Access to Member-Exclusives and Fewer Ads
Get Prime

    Also Includes:

  • The Hive Member Forum
  • Members-Only Newsletter
  • RSS Feeds
  • Commenting
Prime Ad Free
$120/yr
Access to Member-Exclusives and NO Ads
Get Prime AF

    Also Includes:

  • The Hive Member Forum
  • Members-Only Newsletter
  • RSS Feeds
  • Commenting
Prime Ad Free
$11.99/mo
Access to Member-Exclusives and NO Ads
Get Prime AF

    Also Includes:

  • The Hive Member Forum
  • Members-Only Newsletter
  • RSS Feeds
  • Commenting
Annual Plans
Monthly Plans

More Membership Options

Student (free with .edu email) CREATE STUDENT ACCOUNT Community-Supported (free all-access membership) APPLY NOW TPM Inside LEARN MORE
CONTACT FAQ
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Publisher:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: