When Politico leaked the U.S. Supreme Court draft decision Monday that would overthrow Roe v. Wade and would leave the legality of abortion to individual states, Margaret Marshall was shocked.
“I had two initial reactions,” said the former chief justice of the Massachusetts Supreme Judicial Court. Boston Public Radio Friday. “The former was stunned that a draft notice had leaked. It just doesn’t happen. …And the second was, as I started to read the draft notice, I was shocked at the language that Justice [Samuel] Alito uses.
Alito wrote the draft opinion, which Chief Justice John Roberts confirmed as authentic.
Marshall has written numerous legal opinions over the course of her career, but she is best known for the landmark 2003 decision Goodridge v. Department of Public Health, which made Massachusetts the first state in the country to recognize same-sex marriage as a basic right.
“There are many ways to write an opinion,” she explained. “But particularly when a judge knows that an opinion will deeply divide large parts of our nation, on whatever side it is, at least it had been my practice…to pay homage to the other side.”
She remembers writing the decision legalizing same-sex marriage. “I think we worked very hard to make sure we explained to the people of Massachusetts the legal basis for our disagreement,” she said. “There were no personal attacks.”
Marshall contrasted his approach with Alito’s line in the leaked draft which stated that “Roe was completely wrong from the start”.
“These are terms that we only used with some of the big mistakes the court made,” Marshall said. “The Dred Scott decision; Plessy versus Ferguson saying that in racial matters, separate is equal, and not separate is unequal; the decision confirming the internment of Japanese citizens in the United States – I mean they were blatant from the beginning. It wasn’t obvious at first. »
Marshall said the draft notice raises more questions.
“I thought to myself, ‘Why is this man so angry and why is he spitting his vitriol across this country? “”
The former chief justice also took issue with Alito’s reasoning, which many believe opens the door to overriding other rights. Alito argues in the draft decision that the right to privacy does not protect abortion, as 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 Supreme Court of the United States, in particular, but any court, says ‘this is an isolated case…it won’t be repeated anywhere,’ it’s never an isolated case,” Marshall said. . “Never believe when a judge says ‘This is a unique case’ because we are working on a system of precedents.”
Another issue Marshall has with the draft opinion concerns Alito’s argument that abortion is not mentioned in the Constitution and that additional rights “must be” deeply rooted in history and tradition. of this nation “.”
“All kinds of things are not ‘deeply rooted’ in our nation’s history and traditions,” she said. “Little by little, groups of the excluded made their way precisely because they were not part of deep-rooted traditions. And so when Judge Alito uses that sentence, basically in one sentence, erases everything we’ve achieved.
Marshall recalled his decision in favor of same-sex marriage. “Believe me, same-sex marriage wasn’t deeply rooted in anything,” she said.
Alito’s language about American tradition also prompted Marshall to reflect on her legacy as the first woman to serve as Chief Justice of the Supreme Judicial Court of Massachusetts.
“We’ve come a long way,” she said. “I stand on the shoulders of generations of women, generations of women. And for a Supreme Court judge to say, “We’re not going to recognize any rights that aren’t deeply rooted in our traditions and our history. I can’t imagine what that does for African Americans or for women. I feel that intensely as a woman.