In the 1320s, the Roman Catholic Church was shaken by a dispute about papal infallibility.
The pope’s position on the issue wasn’t what you might expect. A Franciscan priest, Peter Olivi, insisted the pope was infallible, but he did so in order to assert that the then-current pope, John XXII, lacked the authority to rescind a pro-Franciscan decision made by one of his predecessors.
John, understandably, was annoyed by the attempt to limit his authority. In 1324 he issued a papal bull, Qui quorundam, in which he “condemned the Franciscan doctrine of papal infallibility as the work of the devil,” according to August Bernhard Hasler in his book “How the Pope Became Infallible.”
And so matters stood until 1870, when Pope Pius IX reversed John XXII, just as John had reversed his own predecessor.
For people working inside the strictly hierarchical American legal system, it’s simply a given that the Supreme Court is infallible. Since no one can reverse the justices’ decisions, their statements of the law are legally unassailable. Theirs is the last word, literally.
As Justice Robert Jackson once wrote, “We are not final because we are infallible, but we are infallible only because we are final.”
But, of course, infallibility doesn’t mean the justices can’t change their minds. Recently, I mentioned the way the court changed the nation’s double jeopardy law in 1990, then changed it back in 1993.
The key point is that the flip was as valid as the flop. To the legal mind, the Supreme Court was infallibly correct when it said the double jeopardy clause meant one thing, and also infallibly correct when it said it meant something completely different.
If you can wrap your head around the concept of sequential infallibility, you’re well on your way to learning “how to think like a lawyer,” as law professors used to like to say.
But no one not actively involved in the practice of criminal law even noticed that little episode. The draft abortion opinion authored by Justice Samuel Alito in the case of Dobbs v. Jackson Women’s Health Organization and leaked to Politico got a little more attention than that.
You’ll frequently hear it said that certain of the justices worry about their court’s legitimacy, or that Chief Justice John Roberts is an “institutionalist.” These are very abstract ways of expressing problems that are illustrated in a concrete way by the recent leak.
Roe v. Wade was decided in 1973 on a 7-2 vote. Four Republicans were in the majority. The dissenters included one justice from each party. In the Casey decision of 1992, five justices voted to uphold Roe. All five were Republicans.
Because of some overlap, that works out to a total of 11 justices who supported the constitutional right to abortion, or constitutional protection against governmental interference in one’s medical decisions, however one wishes to view it.
Now we have another justice, Samuel Alito, writing “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak …” That’s unusually blunt language from a justice. He’s saying not just that Justice Harry Blackmun, the author of Roe, was a weak reasoner, but that 10 other justices lacked the intellectual capacity to recognize it.
This is more than an insult. One of two things must be true. Either Alito is right, and his 11 predecessors were unreliable interpreters of the Constitution, or else he’s wrong, marking himself out as unreliable.
Either way, it reflects badly on the court. His words don’t merely raise the possibility of eroding public confidence in the court. He’s making it logically impossible for the attention-paying public to maintain unquestioning confidence.
Alito’s draft opinion also asserts that Blackmun’s opinion in Roe “either ignored or misstated” the history of abortion law in America. Again, that’s unusually strong language. Alito doesn’t suggest that Blackmun was mistaken, or that new evidence has since come to light. Rather, he’s saying that Blackmun lied, with the only question being whether he did so by omission or commission.
The New York Times of May 4 quotes various historians saying that, on the contrary, Blackmun’s historical account was more accurate than Alito’s. But it doesn’t matter who’s right. Alito leaves us with only two options. If Justice Blackmun didn’t ignore or misstate the historical evidence, it can only mean Justice Alito is doing so when he levels that charge.
Either way, he’s leaving us with no option than to conclude that some, at least, of the Supreme Court’s members cannot be relied upon to tell the truth plainly and fully.
These are the sorts of doubts institutionalists such as Chief Justice Roberts would prefer not to raise in the minds of Americans.
Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at email@example.com.