Stick with me a moment: I'll stop there because it establishes my point: "substantive due process" analysis requires a deep, even scholarly, review of the law and "traditions" (wherever they come from, and isn't that an interesting subject? Here, let me drop in a quick example Justice Kagan might bring to the discussion: I'm just sayin'....)
As I say, a comprehensive review of the law and traditions would be necessary in order to establish a valid argument that Roe and Casey must be overruled on substantive due process (i.e., nonenumerated rights) grounds. Not finding the word "abortion" in the Constitution is facile and beneath the dignity of the high court, and yet the draft opinion thinks it a ringing rebuke; or at least a clever observation. Worse, the review of law in that draft is highly selective, ignoriing any laws that don't support the preferred conclusion. That's where a scholarly review would come in, but even scholars have preferences, so I'm not arguing a scholarly stance would be more "correct." It would, though, be more comprehensive, and at least give the appearance of considering many sides while coming hastily to a conclusion.*
The basis of legal reasoning in the American tradition comes from England, and that tradition is rooted in the common law. In the common law, courts looked to already decided cases (stare decisis) to find guidance for what the law is (or should be) in the case before them. This is literally how much of the law of England was established, and exists to this day. Seldom was a prior case on "all fours" (the metaphor refers to a four-legged animal, all four feet solidly planted on the ground) with the facts at hand; so what is the just outcome now? Enter careful legal analysis, looking for the principles applied in similar cases and considering which principles apply here and now. Tradition can be a dead hand, here; but the law is also meant to be alive, neither a corpse nor a will o' the wisp. Legal analysis examines the applicable cases and finds the principles it can apply to the present facts. That application is a direct result of the analysis performed, so in the spirit of "show your work," judges are expected to explain their reasoning as explicitly as possible.
It may be that reasoning is only truly clear to other lawyers, but I hear provisos for drugs advertised on TeeVee that quickly veer into medical jargon I can't possibly understand, though I'm sure my sister-in-law, the retired oncologist, understands it as easily as I do Wittgenstein or Derrida (who would equally leave her bewildered).
Nonetheless, the reasoning is expected to lead to the conclusion by a clear path from the cases that come before: stare decisis. If you must overrule a prior case, there needs to be a sound reason for doing so, and if the reason is "unenumerated rights," then the analysis of "tradition" and the law must be very scrupulous, indeed.
The leaked draft, to say the least, fails this expectation miserably.
No, the court should not willy-nilly establish rights. But neither should it freely cut them off because a majority finds it has the power to do so. And that's all this draft opinion amounts to.
I know I'm saying much the same thing over and over again; but
much of the discussion of this case in popular media, at least, is less than helpful. And I'm ill equipped to access the research materials and have the time I would need to write a line-by-line rebuttal of Alito's draft opinion. I'm going, instead, after the jurisprudence (i.e., judicial philosophy) behind it. And I'm approaching even that carefully, so I don't have to stop and explain schools of thought like natural law, legal positivism, and legal realism (and the subsets of those), concepts I studied 40 years ago myself and am not all that conversant with right now (except in very broad outline). I repeat myself, but I don't find any objective (v. subjective, i.e, personal preference) guidance in Alito's draft opinion. All I find is someone determined to have their way, and exercising the power they have to get it. Dahlia Lithwick thinks the court is undermining its authority by its secrecy. I think the damage is far more extensive than that, and far more threatening to the Republic.
So I repeat myself. But I'm like a wind-up toy. The circumstances have wound me as tightly as possible; but I will run down, eventually.
*The Plyler decision, for example, considers a thorough fact-finding by the trial court and weighs arguments for and against the two arguments before it (the State defending its law, the "Doe" side attacking it as a violation of the 14th Amendment). It is a careful and deliberative argument which gives the sense all issues have been attended due and given due consideration. The draft opinion, on the other hand, reads like 98 pages throwing everything against the wall, not to see if it will stick, but to bewilder the audience. As we used to say in high school English, if you can't dazzle 'em with brilliance, baffle 'em with bullshit. Not exactly the standard one would expect from a Supreme Court opinion.
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