Justice Samuel Alito wrote the conservative majority’s opinions in two of the most consequential Supreme Court decisions in recent years: 1) Dobbs v. Jackson Women’s Health Organization—overruling Roe v. Wade; and 2) Louisiana v. Callais—neutering the Voting Rights Act of 1965. In both cases, Alito recited and relied on asserted “facts” that did not exist.

Alito Rewrote History to Ban Abortion

Ohio State University Prof. Treva Lindsey observed, ”From the nation’s founding through the early 1800s, pre-quickening abortions—that is, abortions before a pregnant person feels fetal movement—were fairly common and even advertised.“

But Alito claimed incorrectly in Dobbs that “no common-law case or authority... remotely suggests a positive right to procure an abortion at any stage of pregnancy” and, in the United States specifically, “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

Writing for the three dissenters, Justice Elena Kagan called Alito “embarrassingly” wrong. There was no such “unbroken tradition,” and historical evidence undermined his claim. But the conservative majority got its desired outcome.

Roberts Began the Assault on the Voting Rights Act

In 2013, Chief Justice John Roberts and the conservative majority began undermining the Voting Rights Act in the Shelby County case. Prior to that decision, states and localities with a history of racial discrimination in voting had to obtain federal approval before making changes to election rules—a process known as preclearance. The state or locality had to prove that any changes would not disadvantage racial and ethnic minorities.

Rewrite history; distort reality; make up facts; overturn longstanding precedent. For Justice Alito—with an occasional assist from Chief Justice Roberts—it’s all in a day’s work.

Roberts argued that the elections of 2008 and 2012—when there was no difference in voter participation rates between Black and white voters (i.e., no “turnout gap”)—meant that the Voting Rights Act had done its job and preclearance could be suspended.

Even at the time, Roberts’ reasoning was suspect. The elections of 2008 and 2012 were anomalies—not the end of the turnout gap—because Barack Obama’s candidacy had driven up Black turnout.

In her dissent, Justice Ruth Bader Ginsburg noted another flaw in Roberts’ logic: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Justice Ginsburg was correct, and now democracy is getting wet. A 2024 study concluded:

The formerly covered states [subject to preclearance] have large nonwhite populations and large turnout gaps, leading to some of the largest statewide turnout distortions........

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