In the minority writing of last month’s Supreme Court decision overturning Roe v. Wade, three justices delivered a dissent that was both lacerating rebuke and baleful elegy. Folded unexpectedy inside: a surprising reference to a popular game that served as a lesson in metaphor, nestled neatly between two parenthesis.
Samuel Alito wrote the majority opinion. The dissent was jointly authored by Stephen Breyer, Elena Kagan and Sonia Sotomayor. Both writings have moments of power, and both have stretches where they’re likely dense to the layman; at one point the majority cites Henry de Bracton, who you probably know from his TikTok dances. (Just kidding, he was an English jurist who died 754 years ago.)
Of the two, the dissent is notably conversational. One dismissive sentence, after recapping a portion of an opposing argument:
But that is flat wrong.
Another surprising flutter of breezy language:
The first problem with the majority’s account come from Justice Thomas’s concurrence — which makes it clear he is not with the program.
But rhetorically, the sentence that leaps out with particular force is a reference on the dissent’s 25th page. It comes in a parenthetical comment at the end of this sentence, as the justices use language to make a warning become as tangible as a piece of alder wood:
Faced with all these connections between Roe/Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry. It can (so it says) neatly extract the right to choose from the constitutional edifice without affecting any associated rights. (Think of someone telling you that the Jenga tower simply will not collapse.)
Jenga is the brand name of a game where players assemble a tower out of 54 wood blocks, then slide out pieces one at a time, stacking them on top of the structure until it collapses. You probably knew that already, as it’s claimed the game has sold more than 80 million copies.
It’s not unusual to see a precarious Jenga tower at a party; it’s also been used as a comparison in some of the writings about Dobbs before the decision’s release, including by and Leo O’Malley, blogging for
But it was an unusually earthy, real-world example to find in a document that’s both urgent and an immediate claim to history as Dobbs is. And it’s a muscular reminder that no matter whether you’re liberal or conservative, whether your writing is necessarily weighted with jargon and drooping with footnotes, whether you’re writing an impactful majority or a protesting dissent, you can still reach for the unexpected image when you want to rattle readers with a warning of what could happen if everything comes crashing down.