Are the Alito Five Capable of Regret?

 

Linda Greenhouse, long-time Supreme Court reporter and an expert on its history, titled an opinion piece, "Is There Any Twinge of Regret Among the Anti-Abortion Justices?" After a lengthy discussion of all the personalities among the Alito Five and the wealth of history and legal precedents and arguments contained in an avalanche of friend-of-the-court briefs filed in the matter of Dobbs v. Jackson Women's Health Org., Greenhouse concludes her essay bluntly:

So no, I don’t think the Dobbs justices are sorry. They did what they were put there to do, what they wanted to do, and they were quite explicit in washing their hands of the consequences.

The consequences? You may be oblivious to the mounting numbers of women in extremis, with potential fatalities resulting from gone-wrong pregnancies, untreated because doctors in anti-abortion states are now terrified of new rules:

A report titled “Care Post-Roe: Documenting cases of poor-quality care since the Dobbs decision,” published in mid-May by teams of experts from the University of California at San Francisco and the University of Texas at Austin, ... consists largely of excerpts from submissions by 50 health care providers, many of whom felt, as one wrote, that “our hands are tied” as they waited anxiously for their patients’ conditions to deteriorate to the point where the pregnancy could be terminated within the narrow exceptions permitted by the state laws. When doctors turned women away, their next encounter was sometimes in the emergency room or intensive care unit as the patient lay bleeding or even near death.

Unable to get an abortion in their own home states, many women are fleeing to neighboring states, and paying the fare (which ain't light). Chaos has added to the misery fourfold, which moved Greenhouse to consider whether Alito, Kavanaugh, Gorsuch, Thomas, or Coney Barrett felt even a glimmer of regret for overturning what had been for 50 years a basic right of women.

"No."

On the way to that not surprising conclusion, Greenhouse gets into Court history about when regret over a decision leads to a reversal. She recounts the interesting reversal in 1942 of a previous decision in 1940 that allowed school systems to enforce rules for demonstrating patriotism, expelling students who didn't salute the flag or say the Pledge of Allegiance. In 1942, the West Virginia Board of Education required public schools to include salutes to the flag by teachers and students as a mandatory part of school activities. The children in a family of Jehovah's Witnesses refused to perform the salute and were sent home from school for non-compliance. The case, West Virginia State Board of Education v. Barnette, ended up with the Supremes, who had previously, just three years before, ruled that school systems could penalize children for not saluting the flag, actually expel students. But in 1942, the Court reversed itself.

Three men on the Court had voted in 1940 to allow for the expulsion of non-saluting children, and the same three voted to change their minds in 1942, admitting openly that they had been wrong. They regretted the chaos and misery for Jehovah Witness families and tried to correct it. 

But these guys in 2023? Greenhouse concludes that regret isn't a part of their makeup. They're too busy enjoying their status as billionaire accessories, riding the boat but not steering it.