08 May 22
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On a special episode of Amicus this week, Slate’s senior writer and legal analyst, Mark Joseph Stern discusses the events that have led to this moment and what the opinion could mean for the future of a handful of fundamental civil rights related to the landmark 1973 ruling. Our conversation has been condensed and edited for clarity.
Dahlia Lithwick: Before we even start, Mark, I believe the day Anthony Kennedy stepped down, but certainly the day Brett Kavanaugh was confirmed, you wrote about how this was going to happen. Many people said “ no, no, no, there’s plenty of time! Chief justice John Roberts, incrementalist! Brett Kavanaugh, moderate! Amy Coney Barrett, solicitous of all comers and a big-open-minded-non-radical human!”
In the face of all that, I think you have been saying, this is what’s coming and now it has happened. And I’m really thunderstruck at the number of people who are shocked, shocked. I’m so surprised, which is met in equal measure by the people who are like, well, I’m not surprised at all.
Mark Joseph Stern: When Brett Kavanaugh joined the court in 2018, I did make a prediction about this that turned out to be wrong. And my prediction was that the court would take an incrementalist approach to rolling back Roe v. Wade. And that the court would take a series of cases that examined these various laws coming out of Republican-led states that either moved back the line like this one, actually, which is a 15- week ban or that outlaw abortion for some specific reason like race, sex or disability, or some restriction on how abortion clinics are run and use those decisions to ship away at the basis of Roe until finally, it could just say, all right, look, we’ve already killed Roe.
We’re just going to admit now that it is overturned and that’s not what happened. And I think the reason why it’s just three words: Amy Coney Barrett. As soon as Barrett joined the court, the calculus fundamentally shifted because there were five justices who clearly despised Roe, who no longer had to rely on chief justice John Roberts, and his somewhat more cautious and institutionalist, incrementalism and could go whole hog.
Mark: And when those justices agreed to take up this case, it seemed like the handwriting was on the wall from then on. And especially after oral arguments, it was clear that there were five votes to just do away with Roe all at once, altogether, right now, rather than drag out the process and force the court to go through years of suffering. There are five and we now know there are clearly five who just really want to get this over with and abolish the constitutional right to abortion once and for all.
Dahlia: So Mark, as I intimated up top, I don’t want to spend a lot of time on the “who done it” because I do think it’s a real distraction, but you’ve just given voice to the sense of anarchy, that there’s no rules anymore and the majority is signaling that we are going to get the outcome we want and we don’t care. And I want to link it up to the opinion itself. You wrote about this on Monday night, but in a weird way, the opinion feels like it’s written by arsonists.
I think so much of the norm of care and solicitude about the justices who came before is gone, respect for the people who crafted Planned Parenthood v. Casey, that is deeply ingrained, such that you just don’t write an opinion saying, man, Roe was a shoddy piece of drafting. Man, Casey was a capitulation that was predicated on nothing.
One of the things that’s striking to me beyond the doctrinal shift, which we’ll get to in a second, is this tonal shift, this full on Tucker Carlson, Rush Limbaugh, name calling. We’re talking about “abortionists” now and “eugenics” and Clarence Thomas’s pet theory about why abortion rights were deployed to harm black women and their babies. I guess I just feel like the tonal shift inside the opinion is almost as striking as the norm shift you are describing within the court itself.
Mark: And here is the part where we have to say, I think, that this is a draft opinion and that it was circulated apparently on February 10th, right? And the way this works in the court is that the author of the majority opinion will write it and then circulate it to the other justices. Some of them will join. Some of them will begin their dissents or concurrences.
And so I think that what we’re seeing here is pure unadulterated Alitoism. We are seeing what this opinion would have looked like if he had simply hit save on the document and then uploaded it directly to the Supreme Court’s website when he was done, rather than receiving input from justices, like Kavanaugh and Barrett, who might have suggested toning down certain sections, bringing them in line with a few compromises, even if they’re not substantive and just tonal. And I actually think there’s a possibility that Alito may have swung for the fences as a tactical way to ensure that there would still be some snark and scorn in the final product.
I think it’s quite possible though, that Alito said, well, Brett and Amy are going to make me tone down some of this stuff, but I’ll put as much of it in as possible to make it more difficult for them to eliminate all of it. I will go all the way to fury mode and just deride Harry Blackmun as a partisan hack and a baby killer. I’ll just write off Anthony Kennedy as a pretentious doof, who had no idea what he was doing. I will completely disclaim these past justices, these past decisions, and hope that Brett and Amy don’t make me walk it back too much.
And that tone – whether it ends up in the final opinion or not – it is shocking, I think, for us to see, because when Alito does pure Alitoism, it’s usually in a dissent or concurrence or he’s writing for himself or maybe himself and Clarence Thomas. And this is ostensibly speaking for the majority of the court. And I just think it’s eye popping and incredibly unusual for us to read an Alito opinion, labeled opinion of the court that is so nasty and acidic and vile and disrespectful because it just has never happened in the past.
Dahlia: I felt after Dobbs folks like you and I said, when we listened to the oral argument, that the more you heard the justices trying to assuage us that none of these other “unenumerated rights” cases are on the table, the more it felt like these other cases are on the table.
And I just want to talk for a minute because it’s clear Justice Alito wants to cabin this, and say it’s just Roe we’re talking about. But I do think once you pull out that piece at the bottom that says, there’s no such thing, really as any unenumerated rights that were not seen as fundamental to liberty at the time of the founding, then everything falls, right?
It’s just really hard to see, as you’ve said, how Griswold survives, how Loving v. Virginia, the interracial marriage case survives or Lawrence v. Texas, and Obergefell.
All those by necessity are now built on sand. And I’m hearing two different things: One is, “You’re hysterical because now having warned us for years that Roe v. Wade is about to be overturned. Oh, and by the way you were right, but all this other bad stuff isn’t going to happen, right?”
There feels like a kind of persistent, I guess sense that we’d rather remain frogs boiling in this pot for a little bit longer. And then I guess the other thing I’m hearing is, “No, there’s a principled difference between abortion and all of the other progeny of Pierce and Myers and the cases that establish the liberty interests that are embodied in the 14th Amendment.” Substantive due process is meaningful and a profoundly important answer to chattel slavery and it’s an answer to what do we do when we are trying to write a 14th Amendment that confers upon former slaves, all of the freedoms that they didnt have, and it is the freedom to marry your partner. It is the freedom to raise your own children. It is the freedom to determine how many children you will have and how you will raise them. Those are not meaningless penumbras and emanations.
That’s a substantial, I think, building block of freedom, but I guess I’m curious if you can see some principle here that allows Justice Alito to say, “Oh no, no Obergefell is safe and don’t worry about your birth control. Abortion is just different.”
You flick at in your piece that abortion just different, because it’s taking a life.
Mark: Yes. And that’s what Alito lays out in his opinion. He says that abortion is sharply distinguished from other rights that were recognized in previous cases on which Roe relied because it destroys a potential life or an unborn human being. And so abortion is just sui generis because it involves basically what we view to be killing. And so we are not going to allow it to stand as precedent, but we’ll simply pluck it out of this entire line of precedent and let the rest stand.
And there are a few problems with that as we’ve already discussed, there are other precedents that have very similar reasoning, that are not “deeply rooted” that seem to be imperiled, but he actually does this kind of rhetorical trick to make it seem like he’s saying that the gay rights cases are safe, but then not actually say that at all.
So he has this passage where he’s talking about other decisions that created or established unenumerated rights that are different from abortion, but that he says are safe and that the abortion decisions relied on, but that he’s not overturning. And those are cases like Loving, which we’ve discussed, or the right to use contraceptives, or the right to be free from sterilization, and rights around raising children. So he has that section and he basically says, these are okay. We’re not going to overturn them.
Whether you believe him or not, that’s a whole other issue. But then he has a turn and he says, “Oh, by the way, there were also these cases that came after Roe, that came after Casey, that are more recent cases, that rely on a similar sense of individual autonomy that the court has to define.” And those cases are Lawrence v. Texas and Obergefell v. Hodges. So the sodomy decision and the same-sex marriage decision, basically, granting equal rights to gay people.
And he doesn’t put those cases in the list of precedents that are safe. Instead he mocks them and he says that they relied on this broad and hazy reasoning of individual autonomy, which taken to its logical extreme would create a fundamental right to illegal drug use and prostitution. And so that cannot be correct.
So you can pluck out a few sentences of this opinion and make it sound like everything else is safe. But if you read these pages really closely and again, they’re subject to change, and who knows what’ll happen. But right now it sounds like some of those precedents are maybe safe, if you take Alito on his word and some of them are definitely not because they are placed in the exact same bucket as the right to abortion, which this entire decision is overturning.
I take very little solace in these couple of lines that people are fixating on. And there have been those who claim that I am overreacting, I guess time will tell. But I was also told that I was overreacting when I said the Supreme Court was going to overturn Roe and here we are.
Debris covers the inside of the Donetsk Academic Regional Drama Theatre following a March 16, 2022, bombing in Mariupol, Ukraine, in an area now controlled by Russian forces, Monday, April 4, 2022. (photo: Alexei Alexandrov/AP)
An Associated Press investigation found that roughly 600 people were killed in the March airstrike — nearly double the previous death toll cited — making it the single deadliest attack on civilians in the war thus far. The outlet used witness accounts from 23 survivors, rescuers, and people familiar with the building as a shelter to recreate what happened inside the theater that day.
On March 16, Russian forces bombed the Donetsk Academic Regional Drama Theater in Mariupol in a shocking attack that quickly garnered international condemnation. Ukraine's government has opened a war crimes investigation in the aftermath of the strike, according to the AP.
In addition to being used as a bomb shelter, the theater became a gathering point for people hoping to be on hand for the start of evacuations out of the besieged city, the outlet reported. About a week before the attack, a set designer with the theater used white paint to write the word "CHILDREN" in Cyrillic letters outside the building on two sides in an effort to prevent a bombing.
Survivors estimated that there were around 1,000 people inside the theater at the moment of impact, but many told the outlet that only about 200 people were seen escaping. All the witnesses said at least 100 people were holed up in a field kitchen right outside, none of whom survived the blast, according to the AP.
Prior to the attack, people in the theater avoided congregating on the theater's stage, which sat directly below a domed ceiling, which witnesses said felt like a "bullseye." Instead, dogs and cats were kept on the stage, which ultimately became the strike target everyone feared, the AP reported.
Pregnant women who had fled the deadly airstrike on a maternity hospital in Mariupol earlier in the month, along with families with young children were given extra space in the theater's dressing rooms on the second floor right behind the stage — a generous act that would prove fatal.
According to the outlet, as of May, the theater is completely demolished as Russian forces control the area around it. An AP video shows heavy equipment further destroying the remaining rubble, while Russian state media reportedly shows no bodies still inside the ruins, despite what witnesses described.
The lack of visible bodies led some witnesses to speculate that the hundreds of dead bodies were either pulverized or removed by Russian soldiers, the AP reported. Experts told the outlet that witness testimony will be all the more important in any future investigations into the attack.
"They came not to capture the city — they came to destroy it," Maria Kutnyakova, a survivor of the bombing told the AP. "They are trying to hide how many people actually died in Mariupol, hide their crimes."
The aftermath of this attack is not the first time Russia's actions have signaled that its military may be covering up war crimes. In April, the Mariupol city council accused Russian forces of using mobile crematoriums to burn civilian bodies.
The city council said Russian leadership "ordered the destruction of any evidence of crimes committed by its army in Mariupol" following outrage over hundreds of civilian deaths in Bucha. Satellite images from last month show at least two sites of mass graves outside Mariupol.
A field of young wheat seen in late March in Uman, Ukraine. (photo: Michael Robinson Chavez/WP)
In spite of Russian troops blockading Ukraine’s ports, the country’s harvest has continued, but most crops have been unable to leave Ukraine. Now, millions of tons of grain are sitting idle, and the country’s storage capacity is reaching its limits while the world gets hungrier, according to the UN’s top food agency.
Nearly 25 million tons of grain are currently stuck in Ukraine and unable to leave the country due to obstructed seaports and infrastructural issues, said Josef Schmidhuber, an economist with the Food and Agriculture Organization.
Speaking at a press briefing on Friday, he warned of an “almost grotesque situation” in Ukraine, in which grain is being harvested according to regular schedules, but cannot be taken out of the country.
"[There are] nearly 25 million tonnes of grain that could be exported but that cannot leave the country simply because of lack of infrastructure, the blockade of the ports,” Schmidhuber said.
He clarified that the war has so far not had a significant impact on harvests, but it is becoming harder and harder for global markets to access Ukraine’s food commodities.
Schmidhuber explained that most of Ukraine’s winter crops were planted and harvested in the west of the country, far away from the brunt of the fighting and the war did not impact the recent harvest. He added that around half of the planned summer crops are already in the ground, although it is uncertain how much of it will be reaped.
“A considerable crop could be coming in going forward,” Schmidhuber said, but added that the outlook for grains leaving Ukraine remained uncertain, especially if Black Sea ports remained blocked by Russian forces.
Ukrainian ships have been blocked from leaving Black Sea ports for months, and the director of the UN World Food Programme in Germany announced earlier this week that almost 4.5 million tons of grain are currently sitting in containers in Ukrainian ports, unable to leave because of unsafe or occupied sea routes.
Grain shipments from Ukraine are usually done by sea, according to Schmidhuber, but are now being taken out of the country by rail more and more frequently, something he said can be exceedingly more complicated. Grains leaving Ukraine by train can sometimes need to be unloaded and placed on new carriages due to different railway specifications, such as different widths between rails on a single track.
Ukraine and Russia combined are some of the world’s largest suppliers of key agricultural commodities, including wheat, rapeseed, maize, and sunflower oil, according to the FAO. The disruption of these crucial global supply chains has raised food prices and exacerbated hunger issues in some of the world’s most vulnerable regions.
There are also some reports that Russian troops have been looting Ukrainian grain storages, according to the FAO.
“There is anecdotal evidence that Russian troops have destroyed storage capacity and are looting storage grain that is available,” Schmidhuber said, adding that there are also signs Russian troops have been stealing farm equipment as well, potentially putting the productivity of future harvests at risk.
“Grain is being stolen by Russia and transported by trucks into Russia,” he said.
The uncertainty about what direction the war will take, Ukraine’s limited storage capacity for grain, and evidence that Russian troops have been stealing and damaging harvests and farming equipment, means that global food prices—especially those for cereals and meats, according to the FAO’s latest monthly food price index—are still highly volatile.
In its latest food price index, released on Friday, the FAO announced that global food prices decreased in April after a huge jump last month, but Schmidhuber stressed that it was only a small decline.
The UN said in April that 45 million people worldwide suffer from malnourishment, with up to 20 million more at risk of famine because of the war. Highly vulnerable regions of the world where the war is expected to amplify hunger include countries in the Sahel and West Africa, according to the World Bank.
Demonstrators during an abortion-rights protest in Los Angeles on Tuesday, May 3, 2022. (photo: Jill Connelly/Bloomberg/Getty Images)
“Any sort of civil rights or constitutional rights that people have won over the last 50 years is open for discussion. I mean, why not?”
Overturning Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, would radically reshape abortion access in the United States, likely leaving roughly half the country without legal abortion. But, legal experts believe, the end of Roe isn’t the only threat posed by the draft opinion. If it becomes the Supreme Court’s final word, they believe that the right to contraception and the rights to same-sex marriage and intimacy, to name just a few, could soon be on the chopping block.
“This is potentially the first of many decisions where the Supreme Court rolls back fundamental civil rights that have been built up by the court and by Congress since the civil rights movement,” said Carrie Baker, director of the Program for the Study of Women and Gender at Smith College. “So everything’s up for grabs, in my mind. Any sort of civil rights or constitutional rights that people have won over the last 50 years is open for discussion. I mean, why not?”
In Roe, the justices ruled the right to an abortion arose out of a right to privacy, which isn’t explicitly spelled out in the Constitution but rather assembled through the guarantees of the 14th Amendment. Over the decades, the Supreme Court has built a Jenga tower of legal reasoning around the existence of that right to privacy and how rights may be extrapolated from the Constitution. Pull out one block, like Roe, and you threaten to topple the whole thing, experts say.
“Even if you’re somebody who doesn’t care very much about abortion rights, you should be worried about what’s coming down the pike,” said Grace Howard, an assistant professor of justice studies at San Jose State University. “If your rights have not been understood as automatic for the last 200 years, or if your rights are not explicitly stated in the Constitution, this court is basically saying you do not have those rights.”
By the time of the Roe decision, the Supreme Court had already concluded that contraception should be available to married people (in 1965’s Griswold v. Connecticut) and to unmarried people (in 1971’s Eisenstadt v. Baird). In the opinion for the latter case, Justice William J. Brennan Jr. famously declared, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
This notion of a right to privacy, and the way it intertwines with the nature of liberty, also contributed to seminal victories for the LGBTQ rights movement: It was the bedrock of the 2003 Lawrence v. Texas decision, which abolished sodomy laws, which in turn led to 2015’s Obergefell v. Hodges, which legalized same-sex marriage nationwide. (“Sodomy” is often used as a shorthand for same-sex sex—but in reality, the word refers to any kind of anal or oral sex, meaning that states can use sodomy laws to police people’s sex positions.)
In fact, in his draft majority opinion leaked this week, author Justice Samuel Alito specifically mentioned all of these cases. He attempted to draw a distinction between those cases and Roe and Casey v. Planned Parenthood, the 1992 Supreme Court decision that upheld Roe, claiming that the other privacy cases don’t involve “the critical moral question posed by abortion”; abortion is “unique,” in Alito’s view,” because it “destroys what those decisions called ‘fetal life.’”
“We emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Alito’s is essentially trying to argue that, by dispensing with Roe and Casey v. Planned Parenthood, the 1992 Supreme Court decision that upheld Roe, the nation’s highest court will somehow get out of the business of dictating reproductive health law to the rest of the country. But that ham-fisted attempt didn’t exactly reassure the experts who spoke to VICE News.
“Even though Alito very carefully says, ‘This is just about Roe v. Wade,’ I just don’t see how that’s possible. I think this will have farther-reaching implications than that,” said Nicole Huberfeld, a health law professor at Boston University School of Public Health. “There’s no way it won’t open the courthouse doors to further challenges related to the right to privacy and other intimate rights.”
Jessie Hill, a professor at Case Western Reserve University School of Law, called Alito’s insistence that abortion is somehow different an “afterthought.”
“That’s the only thing he really says that makes you think the other rights are not at risk. Every other piece of the court’s logic suggests that there shouldn’t be any of these rights,” Hill said. “There shouldn’t be a right to access contraception. There shouldn’t be a right to same sex-marriage, a right to refuse medical treatment, a right to procreate, like a right not to be sterilized by the government. None of those rights are in the text of the Constitution.”
“I don’t know that, in the short term, anyone is going to outlaw interracial marriage, but there’s no reason, on this logic, that they couldn’t,” Hill added. (Huberfeld disagreed that Loving v. Virginia, the 1976 Supreme Court case that obliterated laws against interracial marriage, was endangered by Alito’s draft opinion alone, because the case is protected by other parts of the Constitution.)
But even if no one ever tries to take down another Supreme Court privacy right case, Alito’s draft could have devastating consequences to rights beyond abortion even on its own.
The Supreme Court doesn’t even need to officially overturn Griswold and Baird in order to choke access to contraception. Anti-abortion activists frequently believe that forms of hormonal birth control, like IUDs, and emergency contraception, like Plan B, cause abortions. (They don’t.) If Roe falls and around half of the United States outlaws abortion, state legislators may attempt to argue that having an IUD constitutes having an abortion and thus make them illegal.
“Simply by criminalizing abortion, they may be sweeping in some birth control anyway,” Mary Ziegler, who studies the legal history of reproduction at Florida State University College of Law, told VICE News last December. “The same goes for some aspects of infertility treatment.”
Alito’s opinion argues that the right to abortion is not rooted in the United States’ “history and tradition.” He also repeatedly cites Sir Matthew Hale, a British 17th-century jurist who is typically credited with originating the common law idea that women are literally their husbands’ property. According to Hale’s conception of women’s rights, for example, marital rape does not exist. (Thanks to Hale’s legacy, many states still have laws that treat certain kinds of marital rape as less serious.)
Alito’s opinion doesn’t go so far as to try to argue that fetuses count as people—an idea that lies at the heart of anti-abortion logic, but one that would radically rewrite vast swaths of U.S. law and potentially endanger pregnant people’s rights. Already, experts say that prosecutors who want to criminalize pregnant people will look for laws that are elastic enough to fit the supposed crime.
Since 1973, there have been more than 1,600 cases where women have been “arrested, prosecuted, convicted, detained, or forced to undergo medical interventions that would not have occurred but for their status as pregnant persons,” according to a legal brief filed to the Supreme Court by the nonprofit National Advocates for Pregnant Women, for the very same case that Alito is now writing on.
By trying to leave states to their own devices when it comes to reproductive rights, Alito’s draft opinion may give a green light to state governments that want to curb the rights of pregnant people, Hill said.
“States are gonna be really emboldened to either explicitly pass laws criminalizing certain conduct during pregnancy, or prosecutors [will be emboldened] to go after that conduct,” she said. “I don’t see what’s to stop them.”
Justice Samuel Alito leans on voices from the distant past to underline his arguments. (photo: Yuri Gripas/Reuters)
The man who wrote the draft supreme court opinion overturning Roe v Wade is known for his quick temper and ‘traditional’ values
The strong words were directed at the draft ruling written by Alito and leaked to Politico that, barring a possible but unlikely change of heart by any of Alito’s conservative peers on the US supreme court, will eviscerate federal abortion rights in America.
Though millions had been bracing themselves for the court’s newly emboldened rightwing majority to deliver a blow to Roe v Wade, the constitutional right to abortion that has been law of the land for half a century, Alito’s attack was so brutal and direct it still left many dumbstruck.
“Roe and Casey must be overruled,” Alito wrote, referring to the 1973 landmark ruling along with its 1992 affirmation in Planned Parenthood v Casey. “Roe was egregiously wrong from the start.”
It is conceivable that some of the sharper edges of Alito’s devastating 98-page screed will be smoothed out before the final ruling is delivered in coming weeks. Other supreme court justices, notably Brett Kavanaugh, might demand as much in order to spare their own blushes.
But none of that will alter the fact that Alito will forever be known as the supreme court justice who destroyed a woman’s right to control her own body and who set the US on a regressive course pointing back to the 17th century.
At least that’s what is suggested by some of the juridical reasoning that Alito deploys in his draft ruling. As Emily Bell, director of the Tow Center for Digital Journalism at Columbia University, noted, the draft draws heavily from two treatises written by an English jurist, Sir Matthew Hale, describing abortion as a “great crime” and a “great misprision”.
No matter that Hale was writing in 1673. Or that, as Bell pointed out, his distinguished career included securing the executions of two women as witches and writing the definitive text for a marital rape exemption that said that husbands cannot be culpable of raping their wives because “by their mutual matrimonial consent and contract the wife hath given up herself”.
Alito leans on Hale and other voices from the distant past to underline his main contention: that “the Constitution makes no reference to abortion” and as a result there can be no constitutional right. He glides over the fact that the constitution, written in 1787, equally makes no reference to airplanes, car license plates or Snapchat, though that hasn’t prevented the nine justices applying constitutional laws to those fields.
Alito’s other central argument in scuppering Roe is that constitutional rights have to be “deeply rooted in the Nation’s history and traditions”. Yet, interestingly, that standard makes no appearance in the US constitution either.
That Alito should have made such an abrasively aggressive, no-holds-barred, demolition of Roe v Wade comes as no surprise to those who have observed his style of jurisprudence up close. The justice has a famously quick temper and razor-sharp tongue that he’s even prepared to turn against his colleagues on the conservative side of the court – especially the chief justice, John Roberts, who is looking increasingly isolated amid the rightward march of the majority.
Alito responded derisively to a recent opinion written by Roberts in a religious liberty case relating to same-sex couples fostering children. The ruling sided with the religious group, but for Alito that wasn’t enough.
“This decision might as well be written on the dissolving paper sold in magic shops,” Alito complained.
“He’s very intelligent, extremely aggressive, often sarcastic,” one lawyer who has argued a case in front of Alito told the Guardian. “He’s not pleasant to argue in front of. Other justices are incisive but conversational questioners – he is combative and hostile towards people he doesn’t agree with.”
Alito, 72, was born in Trenton, New Jersey, to an immigrant Italian father and Italian-American mother. Educated at Princeton and Yale law school, he rose up the legal ladder through the US Department of Justice (DoJ) in the Ronald Reagan years.
George W Bush nominated him for a seat on the nation’s highest court in 2006.
His anti-abortion tendencies stretch far back. In 1985, in a job application for a post at the DoJ, he boasted about his contribution arguing before the supreme court that “the constitution does not protect a right to an abortion” – the exact same line he pursues in his draft ruling 37 years later.
In the same job application he also bragged about having argued before the court that “racial and ethnic quotas should not be allowed”. That presents a chilling portent of his position in a separate blockbuster case scheduled to be heard by the supreme court next term that challenges affirmative action at Harvard and the University of North Carolina.
Since joining the court he has staked his position, alongside Clarence Thomas, as the gatekeeper of the court’s reactionary wing. With the recent addition of fellow conservatives nominated by Donald Trump – Neil Gorsuch, Kavanaugh and Amy Coney Barrett – his star is now in the ascendant.
In 2007 he wrote the majority opinion that declined an appeal from Lilly Ledbetter that would have established equal pay for women, on grounds that she had missed a filing deadline. Barack Obama’s riposte came in his very first act as president when he signed into law the Lilly Ledbetter Fair Pay Restoration Act.
The bad blood between the two men thickened in 2010 when Obama used his State of the Union speech to criticize the supreme court for unleashing corporate money into elections with its contentious Citizens United ruling, which Alito supported. “Not true”, lip readers could clearly discern the justice muttering.
A lifelong Catholic who has frequently expressed his fear that the US is moving away from traditional values, the justice has also been at the forefront of the conservative push to advantage religious belief against individual liberty. He wrote the majority opinion in the 2014 Hobby Lobby case that allowed Christian-run companies to forgo contraception in their health insurance packages.
That leaning could prove significant should Alito’s draft ruling overturning Roe become final, potentially unleashing a whirlwind of regressive opinions from the court.
Top of the list of vulnerable targets is same-sex marriage. In his draft ruling, Alito goes out of his way to reassure those concerned about the future of gay marriage by saying that his stance on Roe was unique as “abortion is fundamentally different”.
That’s not what he wrote in his dissent to Obergefell, the 2015 ruling that guaranteed the right of same-sex couples to marry. In it, he asked whether the constitution gives a view on what to do about gay marriage.
“It does not,” he said. “The Constitution leaves that question to be decided by the people of each state.”
If that argument sounds familiar, that’s because it is. It’s identical to the reasoning he presents in his draft ruling eviscerating the right to an abortion.
Alliance party leader Naomi Long: 'Confident and progressive leadership.' (photo: Liam McBurney/PA)
In Yeats’s words, ‘all changed, changed utterly’
That refusal, ostensibly a protest over the Northern Ireland protocol, will be even further good news for an already jubilant Sinn Féin, because it proves definitively to its voters that Northern Ireland, set up 101 years ago to be an exclusively unionist state, is incapable of becoming a pluralist one and must therefore be brought to an end. No wonder Sinn Féin’s president, Mary Lou McDonald, has already said that preparations for a border poll should begin immediately and that it could be held within five years.
Northern Ireland is one of the poorest regions in the UK and many of those who work with its most disadvantaged citizens are pointing out evidence that a growing number of people are living in what is defined as destitution. They cannot meet the basic needs of their families. This is not a good time to refuse to govern.
Under threat from the reality of change, unionism has hardened. During the election campaign, Jeffrey Donaldson, leader of the DUP, aligned himself with those extremists opposed not only to the protocol but to the Good Friday agreement and power-sharing. This was madness – the 1998 agreement protected unionist rights, whatever the constitutional future might hold. Donaldson’s support has worked not for his own party but for the hard-right Traditional Unionist Voice party, which increased its vote, though as far as seats are concerned it remains a one-man band. It will maintain its grip on the DUP. Its leader, Jim Allister, who is fiercely articulate in his aggressive nostalgia for the days of unionist dominance, has already begun to jibe at Donaldson about his post-election choices. He demanded to know if the DUP was now willing to be bridesmaid to Sinn Féin, with its MLAs as page boys and page girls.
Donaldson looks increasingly like Miss Havisham, sitting abandoned amid the mouldering ruins of the wedding feast. There is, we all know, no prospect that Boris Johnson will cease to be a cad. He casually let his suave best man Brandon Lewis reveal on Wednesday night that even his most recent promise would be broken. There would be nothing in the Queen’s speech about ditching the protocol, nothing to make it look like he even noticed the dilemma of the party that shafted Theresa May and got him into power. If it suits Johnson to use the DUP in its Brexit standoff with the EU, he’ll use it. Otherwise, his response to the DUP’s neediness is Rhett Butler’s to Scarlett O’Hara: “Frankly, my dear, I don’t give a damn.”
Donaldson would far rather stay at Westminster than return to Stormont. Another of Johnson’s broken promises (allowing double jobbing) means he must choose. Paul Givan, the first minister ousted when Donaldson pulled down the executive earlier this year, said last night the party leader should be at Stormont, more evidence that the party is still bitterly divided. This election has simplified the political landscape, while also making it more interesting, not least because of the massive success of Alliance, which has emerged as the third largest party. It takes no position on the constitutional question and draws voters from unionist, nationalist and other backgrounds. Alliance used to be the party that “nice” unionists said they voted for when they didn’t want to admit they voted for the Reverend Ian Paisley. Under the confident and progressive leadership of Naomi Long, it has attracted a broad range of people, including many young people from the Protestant community who have rejected the DUP’s fundamentalism and intransigence.
At Stormont, under the power-sharing arrangements established under the Good Friday agreement, parties must designate as unionist, nationalist or other. Alliance is “other”. It has surpassed even its own highest expectations, taking 13.5% of first preference votes and gaining numerous seats through transferred votes. The Social Democratic and Labour party and the Ulster Unionist party suffered devastating losses, even in their heartlands. The Green party lost its seat.
Long has been campaigning for a change in the power-sharing arrangements that recognises that the old binary no longer represents political reality and that her voters cannot be treated as lesser citizens whose representatives are not called upon when “cross-community support” is being measured. The success of Alliance will ensure that Sinn Féin and the DUP, should they form an executive office together, must represent the interests of a diverse society.
The lines by Yeats about the Easter Rising in 1916 and its aftermath are overused but in this case are apt. “All changed, changed utterly.” Northern Ireland has had a transformative election.
Mining fuels the modern world, but it also causes vast environmental damage. What would happen if we tried to do without it? (photo: Khaled Desouki/Getty Images/BBC)
Mining fuels the modern world, but it also causes vast environmental damage. What would happen if we tried to do without it?
Society is more dependent on both greater variety and larger volumes of mined substances than ever before. If you live in a middle-income country, every year you use roughly 17 tonnes of raw materials – equivalent to the weight of three elephants and twice as much as 20 years ago. For a person in a high-income country, it is 26 tonnes – or four and a half elephants' worth.
Extracting new materials continues to be cheaper than re-use for many substances, leading some experts to sound the warning about the increasing pressure of mines on the natural world. A growing chorus is concerned that environmental toll of mine-caused pollution and biodiversity loss, as well as the social impacts caused to local communities, could sometimes outweigh the benefits of mining.
But what if we stopped extraction of fossil fuels and minerals entirely? What if, in order to better protect the environment, humanity decided the contents of the Earth's crust were off limits?
It's an unlikely scenario, to be sure, and one that would cause hardship for many people – particularly if it happened suddenly. But imagining a world without access to the underground allows us to examine how dependent we have become on this ongoing extraction. It also invites us to consider the frivolousness with which we often then throw these materials away, and to examine the overlooked potential in this waste as a source of new materials.
So could considering the end of mining help to change how we use materials today?
Victor Maus, a researcher in geoinformatics and sustainability at the University of Economics and Business in Vienna, Austria, has spent the last three years poring over satellite images of the Earth's surface to estimate the total area humans currently give over to mining. The results surprised him. "It's a country-sized area, and that's just with the mines that are reported," he says.
The land size of mining had never been surveyed by satellite before, making it tricky to train a computer how to identify mines from thousands of photos. Maus and his team therefore had no choice but to make his estimates by eye, and spent hours tracing polygons around the shapes of open pits, shafts and waste tailings ponds. "I was seeing polygons in my sleep," he says.
Above ground, he found, mining sites covered around 100,000 sq km (38,600 sq miles), larger than Austria or five times the size of Wales. "And that's just the mines that are active," says Maus.
Mining is also one of the most basic forms of enterprise, and many locations are unreported. "In reality, the world's total mining area is even larger."
On the first day of a world that stopped mining, the activity across this collective expanse would grind to a halt. Workers in the Democratic Republic of Congo's deep cobalt pits would drop their shovels, colossal bucketwheels in Germany's brown coal mines would cease to strip mine, and the small boats in the Mekong delta would stop sucking up sands.
The first shockwave would be to jobs. Across the world, ending mining would terminate an estimated four million formal jobs in the industry. And the toll wouldn't stop there.
"There's a number of [further] people that rely indirectly on mining sites that would make it greater," says Eléonore Lèbre, who researches the social impacts of mining from the University of Queensland. More than 100 million livelihoods in work connected to artisanal mining – groups and individuals that mine on smaller scale, often informally – would be lost.
Lèbre's research has involved studying the effect of mine closure on towns in remote Australia. "In rural areas, where there might have been mining operations for decades, you have communities that have grown to depend on them." In a world of no mining, ghost towns would be created almost overnight.
These impacts wouldn't stay confined to those communities for long. By day seven, massive ripples would be felt in society. "Energy would be the chief worry," says John Thompson, a mining consultant and professor of sustainability based in Vancouver. "And coal would be the first to go."
Coal is heavy and bulky, so it moves around the world in short supply chains – often going straight from mine to power plant. "Because it takes up so much space, power stations don't have much to rely on in terms of stockpiles," he says. The constant conveyor belt would empty very quickly if mining came to an end.
With 35% of the world still relying on coal for electricity, few countries would escape a sudden energy crisis. However, coal use for electricity generation is not equal the world over – it is 15% in Europe, 63% in China and 84% in South Africa – so energy inequality between countries would soon be felt.
To cope with this cut off from electricity, governments might begin looking to the past. The UK's mining strikes of the 1970s, where rolling blackouts and electricity rations were enforced, could be used as a form of damage control. "The three-day-week policy could make a comeback," says Thompson, referring to how the UK government reduced working and manufacturing to three days instead of five to handle the electricity shortage from the strikes and the oil crisis of 1973.
An indirect, but crippling effect of such electricity drops in the modern day would be the cut to communications. The internet, many of whose servers still rely on coal-powered electricity, would be slashed or reduced. Mobile phone networks might hang on for longer, but with less electricity in the grid, charging devices could become a luxury. Corded land lines, which are connected to centralised telephone exchanges, would last longest – at least as long as back-up generators and batteries could keep them going.
Soon after, bulky materials would become scarce. Stocks of sand and gravel, which are essential ingredients for making concrete, are relatively shallow. Reserves of the two would be depleted within two to three weeks, says Thompson.
"Sand and gravel are the most mined solid materials by mass," says Aurora Torres, who researches the environmental pressures of sand use at the Catholic University of Louvain, Belgium. "We mine vastly more sand than anything." The UN estimates we get through 40-50 billion tonnes of sand per year. (Read more about the world's extraordinary demand for sand.)
There is some capacity to recycle used concrete, but the rate at which we use fresh concrete far outstrips current recycling rates. There would also be quality concerns. "Most recycled concrete is 'downcycled' to lower-grade uses such as road building," says Torres. So while there would be a rush to implement better recycling processes, in the short-term, the building of new homes would plummet.
Meanwhile, the temperature in existing homes would become increasingly uncomfortable as gas stores began depleting after a handful of weeks, reducing power for heating and cooling. In economies that rely on gas-fired power stations for electricity such as the United Arab Emirates (95%), Russia (45%), the US (41%) and the UK (36%), blackouts would become more frequent. Any plastics production able to remain working would be restricted to recyclables as its gas feedstock disappeared.
But there is more to modern society than energy and buildings. "It's after about two months that things would get really interesting, as the mining halt would hit metals," says Thompson. Many mined metals are traded through exchanges in London and New York, where numbers and figures swapped over the trading floor denote the real-life movement of physical stockpiles between warehouses all over the world. For copper, an excellent conductor which is essential for almost all electronics, stockpiles would dwindle to nothing in around six to 10 weeks, Thompson estimates.
This would lead the price of metals to skyrocket. "It's not hard to imagine that theft would increase at this point," says Thompson. When the copper price rose to all-time highs in the 2010s, crime rose with it. Buildings, streetlamps, train lines – anything with copper in – were stripped of their cables for resale. Theft might increase for all the industrial metals – copper, iron, aluminium, zinc, lead and nickel – which by mass account for 98% of all mined metals. The shortage would reveal how much this handful of metals have become the lifeblood of society.
Most countries mine something. China, Australia and the US are the global leaders for production value of raw materials, but extraction makes up a far larger share of the economy for some other nations. In at least 18 countries, metallic minerals and coal account for more than half of all exports; for some of these, it's more than 80%. In a no-mining-of-metals scenario, the entire economies of countries such as Suriname with its industrial gold mining, the Democratic Republic of Congo, where cobalt is king, and Mongolia, a leading exporter of copper, would be at risk.
Simon Jowitt, an economic geologist at the University of Nevada, Las Vegas, does not mince words on what he thinks the end of metals mining would look like. "It would be the end of society as we recognise it today," he says, noting that we mine more now than we ever have before.
A good example of our increasing reliance on a wide array of metals is the average mobile phone, says Jowitt. In the 1980s, a mobile needed 20 or so different elements. A new smartphone today needs more than twice that. "Modern life is simply minerals- and metals-intensive. We wouldn't be having this conversation without them," he quips via video call from his home in Nevada.
Around three months after the end of mining, stockpiles of rare earth metals and other metals useful to technology would be finished, leading to worrying trends for the pharmaceutical, car, electronics and construction industries. This would lead to massive unemployment that on "a never-before-seen scale", says Thompson.
Just in time for the collapse of supply chains, oil reserves would finally run out. The US's strategic petroleum reserve, the largest fallback oil stockpile in the world, contains 730 million barrels of oil stored in salt caverns across the country – enough for three months at most. The production of petrol, diesel, plastics and road asphalt would come to end. And with them, the fossil fuel age.
After a handful of months, global food supplies would be in crisis. An estimated 50% of food production depends on synthetic fertilisers, which are made up of varying formulas of phosphorus, potassium and natural gas. Lower crop yields could lead to food shortages. "Particularly in countries where climate doesn't support food production," says Thompson.
Nuclear fuel is stocked months in advance, so it could be up to a year before society ran out of nuclear power. Renewables, however, would be the ultimate kingmakers. Nations with the highest renewable power generation per person would be at a huge advantage. Iceland and Norway, which both source nearly all their power from hydroelectric and geothermal sources, would be among the best equipped nations to ride out the socio-economic storm.
In a cruel twist of fate, though, despite huge demand for new renewable power, deployment rates of wind and solar power would slump. The paradox of renewables is that, in their current form, they need unprecedented volumes of non-renewable mined materials.
"Increasing renewables, while it means fewer fossil fuels out of the ground, means large upticks in battery metals such as cobalt and nickel," says Thompson. Solar panels demand large amounts of silicon for the semiconductors in their cells. Wind turbines need rare earth metals such as neodymium for powerful magnets that generate electricity with the turn of the blades.
Pressure would soon increase to redirect all metals recycling into renewables. "We do recycle a fair amount already," says Jowitt. "Most of the base metals and a handful of other elements are already recycled at their end-of-life by a rate of more than 50%."
Other metals that are critical to renewables, however, such as rare earths, are "lost by design", he says. "The way we currently use them is inherently non-recyclable." This is because technologies use tiny amounts of more and more elements, all in different ways, making it difficult to separate them to get the individual metals out.
But even if technology developed to extract these tiny quantities of rare earth metals, it's unlikely that it would meet the amount needed to vastly expand renewable energy. "The metals demand is already set to exceed current production many times over," says Jowitt. According to the World Bank, in a world on track to keep global warming below 2C, the annual production of graphite, cobalt and lithium will be five times higher by 2050 than today's production.
There is also a huge inequality in the current distribution of already-extracted metals across the world. Most mined and processed metals are in use in the Global North, where they have been imported, meaning populations in the Global South would have less access to recyclable material. The richest 20% of the global population have access to 60-75% of the world's in-use metal stock per capita, according to one study, a spread even more unequal than carbon emissions inequality. A new world with no mining would have to think carefully about equal access to materials.
An unprecedented rush for research could lead to breakthroughs in recycling technology and circular design, however. "Products would be designed so that they last longer or so that they can be taken apart more easily, and the components returned into the system," says Thompson. This would be an about-face for the tech industry, which today creates produces batteries that are notoriously difficult to recycle. Research might be funnelled into methods of gleaning metals without mining, such as the electrolysis of seawater and brines. "There may also be the development of new biomaterial that could mimic or replace the role of metals," says Thompson. "Luckily these would probably be more recyclable.
Meanwhile, energy production might need to adapt to smaller, more decentralised systems, probably using already-invented tech. Last year, the environmental campaign group Seas At Risk imagined a society in 2050 that had banned mining in 2020. Bereft of a constant supply of metals, the blueprint completely overhauls the electricity grid, with a transition from large, metals-heavy solar and wind farms to decentralised and low-tech distribution. "Direct hydro- and wind-power were other age-old technologies that made their comeback, not only for industrial applications but even for water-powered household devices," it says. Instead of large lithium-ion batteries, compressed-air systems, thermal energy storage and gravity batteries become the champions of energy storage.
Seas At Risk argues for the importance of rethinking energy consumption in a no-mining scenario, as well as for careful environmental policy. Without a clear vision, controversial biofuel production might make up the energy shortfall, with vast areas of land given over to forestry practices to provide wood as a source of building materials, energy and biofuels.
But the work wouldn't stop there. For Lèbre, who researches mine closure, the closed mines themselves would be a huge source of concern. If all mining stopped there would still be an area at least the size of Austria with degrading and in some cases dangerous levels of heavy metals. "Mining is a process of entropy. We are bringing material from locked-up concentrations underground and letting them out into the world."
Ensuring the clean-up and and rehabilitation of these areas would be vital. Mines usually operate at depths below the water table, which need to be constantly dewatered using pumps. When a mine is abandoned, the ground water gradually refloods underground passages and mineral seams over many months, creating acidic reservoirs of water. Above ground, meanwhile, tailings ponds and piles of low-grade ore with traces of heavy metals lie in wait. "All of this material is exposed to water and oxygen," says Lèbre. Exposing such elements to, well, the elements, wreaks havoc on ecosystems, soils and water supplies through acid leaching. "A mine that is abandoned can have chronic pollution for hundreds if not thousands of years," says Lèbre.
Cleaning up a mine consists of reducing water acidity, detoxifying the soil and treating waste before reintroducing flora and fauna to the site. It's a lengthy, expensive process and can cost billions for a single, large mine. Avoiding an environmental catastrophe, and cleaning all the world's mines at once, would cost hundreds of billions or even trillions.
Global inequalities would be seen in this mining clean up too. Maus, in his tracing of polygons across the map, has discovered that the majority of reported mines are located in the tropics, one chapter of a larger shift of mining from the Global North to the Global South over the last century. In a world that ended mining, these regions would have the bigger burden of the clean-up projects.
With healthy soils and water re-established, though, eventually nature would return to mining sites. Wastes and tailings ponds, meanwhile, could present an opportunity to access metals. "Most of a mine's desired elements are [the very same] pollutants present in the waste," says Lèbre.
Mining is not going anywhere anytime soon: in fact, experts predict a new surge in metals and aggregate mining over the coming decades. With the exception of a handful of elements, such as lead and tin, the extraction of all metals is even increasing on a per capita basis, notes Jowitt.
Warranting more concern, perhaps, is the fact that more mining will likely create more land impacts. Mining and biodiversity researcher Laura Sonterand her colleagues recently warned that mining the materials needed for renewable energy will increase the threats to biodiversity. Without careful planning, these new threats could surpass those avoided by climate change mitigation.
Perhaps in time, the concept of material footprints, as an addition to carbon footprints, will catch on with governments, as they increasingly realise how much care we need to take of all our non-renewable resources.
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