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Justice Alito is a staunch opponent of LGBTQ rights, but he may not have the votes to turn back the clock.

Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.

And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).

To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.

Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.

The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.

The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).

Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.

Notably, the majority opinion in Obergefell rejected Alito’s claim that all unenumerated rights flow from Glucksberg. The Glucksberg approach, Justice Anthony Kennedy wrote for the Court in Obergefell, “is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.”

Alito has also shown no signs that he respects Obergefell as a precedent that should be followed even if he disagrees with it. That said, we do not yet know if Alito has five votes to overrule Obergefell (or to attack older precedents such as Lawrence); it’s possible that some of the Court’s other Republicans would join with its three Democrats to preserve marriage equality.

Alito’s draft Dobbs opinion, in other words, probably should be read as an opening bid to his colleagues. How far will they go with him in attacking other rights?

Justice Kennedy built decisions like Lawrence and Obergefell on a foundation of sand

For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.

Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.

The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.

In Lawrence, for example, Kennedy tells us that “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” and that “as the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” But he does little to tie his decision to foundational legal doctrines, thus leaving the rights protected by Lawrence more vulnerable to being overturned by a dedicated, conservative majority.

The strongest argument that discrimination on the basis of sexual orientation violates the Constitution, meanwhile, is rooted in the Constitution’s provision stating that no one shall be denied the “equal protection of the laws.” As the Court held in Cleburne v. Cleburne Living Center (1985), this provision provides heightened constitutional protection to groups that have historically faced discrimination because they possess a trait that “frequently bears no relation to ability to perform or contribute to society.” And there’s no reasonable argument that sexual minorities are not such a group.

By the mid-20th century, for example, many city police forces employed “morals squads” that arrested hundreds of gay men every year. In 1952, Congress prohibited gay men and lesbians from immigrating to the United States. A year later, President Dwight Eisenhower signed an executive order barring gay people from the federal workforce and requiring federal contractors to discharge employees who engage in “sexual perversion.”

Congress did not lift the ban on gay immigrants until 1990. The ban on gay federal employees wasn’t fully lifted until 1998.

But Kennedy largely ignored this equal protection argument, and instead grounded decisions like Lawrence and Obergefell in a weaker unenumerated rights framework. Obergefell, for example, did not hold that marriage discrimination is unconstitutional because it is discrimination. It held that same-sex couples benefit from an unenumerated “right to marry.”

One problem with this approach is that it was clear, by the time Lawrence and Obergefell were decided, that the Court’s right flank was eager to narrow the scope of unenumerated rights and apply the “history and tradition” framework that Alito relies on in Dobbs. Glucksberg, after all, was decided six years prior to Lawrence.

By adopting the weaker unenumerated rights framework, in other words, Kennedy tied gay rights to a legal regime that was already under attack from the Court’s right flank.

It was inevitable that, if conservative Republicans took over the Court, they would swiftly move against Roe v. Wade. Because Lawrence and Obergefell are doctrinally similar to Roe, that means this inevitable attack on abortion rights also endangers LGBTQ rights.

Alito is the Court’s staunchest opponent of LGBTQ rights

Alito is the Court’s consummate legal strategist, constantly looking for ways to move the law to the right, and ever eager to bury bones in one opinion that can be dug up in a future case to score another conservative victory.

Writing for the Court in Knox v. SEIU (2012), for example, Alito asserted that previous Court decisions permitting public-sector unions to charge nonmembers for certain services the union provides to those nonmembers were “something of an anomaly.” This swipe at unions bore fruit in Janus v. AFSCME (2018), which overruled the decisions Alito criticized in Knox and cut off an important source of union funding.

Alito’s Dobbs opinion, with its exclusive reliance on the Glucksberg framework to determine which unenumerated rights are protected by the Constitution, reads much like Alito is trying to run the same play that he successfully pulled off in Knox — slipping language into one opinion that can be used to justify another conservative victory in a future decision.

Much of the draft Dobbs opinion tracks Alito’s analysis in his Obergefell dissent. Like the abortion opinion, Alito’s dissent against marriage equality claims that the only unenumerated rights protected by the Constitution are “those rights that are ‘deeply rooted in this Nation’s history and tradition.’”

Alito then spends the bulk of his opinion claiming that “traditionally,” the right to marry “was inextricably linked to the one thing that only an opposite-sex couple can do: procreate” — an argument that, if taken seriously, would also prohibit people who are post-menopausal or who have undergone a vasectomy or hysterectomy, among other things, from being married.

Alito’s disdain for LGBTQ rights is apparent in his Obergefell dissent, a rhetorical choice that sets him aside even from several of his fellow Republican justices. Some of Alito’s conservative colleagues, who dissented in major LGBTQ rights decisions, went out of their way to state in those dissents that they bear no personal animus toward sexual or gender minorities.

Dissenting in Lawrence, for example, Justice Clarence Thomas made clear that he thinks that the so- called sodomy law at issue in that case is “uncommonly silly” and that, if he were a Texas state lawmaker, he “would vote to repeal it.” Similarly, while Justice Brett Kavanaugh dissented from the Court’s decision in Bostock v. Clayton County (2020), which held that existing civil rights laws prohibit discrimination against LGBTQ employees, Kavanaugh concluded his Bostock dissent by declaring his respect for the “extraordinary vision, tenacity, and grit” of “gay and lesbian Americans” who’ve “worked hard for many decades to achieve equal treatment in fact and in law.”

Alito’s Obergefell dissent, by contrast, treats the moral case for LGBTQ equality as so insignificant that it must bow to concerns that conservatives might be made to feel bad if same-sex couples are allowed to marry. The Obergefell decision, Alito complains, “will be used to vilify Americans” who believe that same- sex couples do not deserve equal rights. And people who express anti-LGBTQ views “will risk being labeled as bigots.”

Of course, the First Amendment protects the right of all Americans to disparage their political opponents, and to use strong language such as the word “bigot” when criticizing someone’s political viewpoint. And the Supreme Court has never held that someone’s constitutional rights must be diminished due to fears that someone, somewhere, might say something mean about people who oppose those rights. Imagine if the Court had backed away from Brown v. Board of Education (1954) due to fears that white supremacists might be shunned or condemned.

In any event, Alito appears to believe that it is more important to protect social conservatives from being made to feel bad than it is to protect LGBTQ Americans from systemic discrimination by their own government. This blinkered approach is likely to drive his approach to LGBTQ rights in the future.

But will Alito have five votes to overrule cases like Obergefell?

It’s likely that a majority of the current Court believes that cases like Lawrence and Obergefell were wrongly decided. After all, of the four justices who dissented in Obergefell, three are still on the Court. Two of the justices in the majority, meanwhile, were replaced by conservative Trump appointees.

But the principle of stare decisis — the doctrine that courts typically should be bound by their previous decisions — is supposed to foster stability in the law, and it’s also supposed to discourage justices from tossing out precedents simply because those justices disagree with them. So anti-LGBTQ litigators need to do more than simply convince a majority of the justices that Obergefell should have come down the other way when it was originally decided. They also have to convince at least five justices to overturn the legal basis for hundreds of thousands of Americans’ existing marriages.

It would be shocking if any of the liberal justices — Justices Sonia Sotomayor, Elena Kagan, and incoming Justice Ketanji Brown Jackson — vote to overrule decisions like Obergefell. Chief Justice John Roberts also appears to have made his peace with marriage equality. Roberts joined the majority opinion in Pavan v. Smith (2017), which reaffirmed Obergefell’s holding that same-sex couples must enjoy the exact same marital rights as opposite-sex couples.

Meanwhile, in a 2020 opinion joined by Alito, Thomas complained that Obergefell has “ruinous consequences for religious liberty.” Three justices — Thomas, Alito, and Gorsuch — dissented in Pavan. That suggests that Alito has two natural allies in the fight against LGBTQ rights.

To sustain decisions like Obergefell and Lawrence, in other words, defenders of those decisions likely need to pick up either Kavanaugh or Justice Amy Coney Barrett’s vote to prevail.

At his confirmation hearing, Kavanaugh endorsed Alito’s view that Glucksberg provides the proper framework for determining which unenumerated rights are protected by the Constitution. But Kavanaugh has also written that Supreme Court precedents should only be overruled if they are “grievously or egregiously wrong.” And that the Court should ask whether overruling a past decision would upset “legitimate expectations of those who have reasonably relied on the precedent” — such as the expectations of same-sex couples who are already married.

Barrett, meanwhile, has explicitly opposed same-sex marriage in the past. In 2015, for example, she signed onto a letter to Catholic bishops embracing the church’s conservative stance on marriage disclination. According to that letter, the church’s teachings on topics that include “marriage and family founded on the indissoluble commitment of a man and a woman … provide a sure guide to the Christian life, promote women’s flourishing, and serve to protect the poor and most vulnerable among us.”

Similarly, according to the LGBTQ rights group Lambda Legal, Barrett also gave a presentation in 2016 “in which she expressed that marriage should not be viewed as a fundamental right for same-sex couples and instead should be decided on a state-by-state basis.”

But Barrett has also warned that stare decisis should not simply be ignored. In a 2016 article co-authored with scholar John Copeland Nagle, Barrett conceded that there are some past decisions that “no serious person would propose to undo even if they are wrong.” And, in a 2017 essay, Barrett suggested that the Court should avoid hearing cases that involve “the most potentially disruptive challenges to precedent.” (As a general rule, four justices have to agree to hear a case before it receives a full hearing from the Supreme Court.)

But, if Barrett’s plan is to simply dodge cases attacking decisions like Obergefell, that plan is unlikely to work for very long. Eventually, a panel of right-wing appellate judges could force the Court’s hand by issuing a decision permitting a state to ban same-sex marriages, daring the Supreme Court to leave that decision in place.

A Supreme Court showdown over LGBTQ rights, in other words, is probably inevitable. And lawyers eager to ban marriage equality or criminalize gay sex most likely start with at least three justices in their pocket.

But it is not yet clear whether they have five.

The Staircase’s central question — who or what killed Kathleen Peterson? — has technically been answered. Michael Peterson was first convicted of her murder in 2003 and sentenced to life in prison. Fifteen years later, after a massive forensics scandal led to his original conviction getting overturned, he would enter an Alford plea, a plea of technical guilt while maintaining his innocence, in exchange for his freedom. But that summation fails to capture the enduring appeal of a case that yielded one gothic, head-turning twist after another.

On Friday, HBO Max released a new narrative series, also called The Staircase. Starring Colin Firth and Toni Collette as Michael and Kathleen, the new Staircase lives somewhere between biopic and ur-Staircase fanfiction. The new series even — finally! — makes room for a now-infamous theory involving an unusual alternate suspect.

To appreciate the new Staircase’s additions, however, you have to understand what made the original so compelling.

The perfect family — and an imperfect crime scene

“Is there anyone here who isn’t always performing?” Michael Peterson jokes about his large, loud family at one point in The Staircase. (Unless noted as the HBO Max docuseries, we’ll be using this title to refer to the original series.) The Petersons, by every account, were lively and loving: Michael, Kathleen, and her daughter by a previous marriage, Caitlin, Michael’s two sons, Todd and Clayton, and their adopted daughters, Margaret and Martha Ratliff. Michael and his first wife Patty had known the Ratliffs when they lived next door to them in Germany years earlier — but Margaret and Martha’s parents had each died in 1984 and 1985, respectively, leading Michael and Patty to adopt them. In 1986, the couple moved back to the states and divorced; three years later, Michael moved in with Kathleen.

A decorated Vietnam War veteran, Michael wrote military fiction; his novels did well enough to allow him to purchase a giant five-bedroom house in Durham for his idyllic blended family. In 1997, Michael and Kathleen married; by 2001, it seemed Michael Peterson, then 58 years old, had acquired the perfect life.

According to Michael Peterson, on the night of December 9, 2001, a balmy 50-something degrees, he and Kathleen were enjoying drinks by their pool after dinner. Kathleen went back inside first, and after some time passed, Peterson followed — and found her lying covered in blood. Peterson made a frantic 911 call in which he hung up several times. Upon arriving at the house and seeing the amount of blood all over the body, the walls, and Michael Peterson, police immediately treated the area like a crime scene.

Misconceptions frequently circulate about the evidence found at the scene. The biggest: the assumption that no fall down a staircase could have caused that much blood. In fact, similar falls result in (warning: graphic imagery) blood everywhere. No blood was found on the ceiling or the wall opposite the stairwell; the defense used this arguable lack of “cast-off spatter” to argue no weapon was used in her death. (Other blood evidence left out of the documentary was debated in court with no real conclusivity.)

Another assumption, later argued by the prosecution, is that Kathleen died from blunt-force trauma. According to the defense’s investigation into homicides involving blunt-force trauma, Kathleen likely did not die of blunt-force trauma, which would have caused bruising, skull fractures, or both. Instead, she had strange injuries to the top and back of her scalp, which caused her to bleed out but delivered no skull fracture or contusion, leaving her actual cause of death a mystery. Kathleen also had an injury to her thyroid which suggested strangulation, but in fact, strangulation was probably not the cause of the injury and was never a major part of the murder theory.

Despite all this confusing and contradictory evidence, things looked grim for Peterson from the outset. In his former role as a contrarian liberal columnist for the Durham Herald-Sun, Peterson criticized members of local law enforcement as well as District Attorney James Hardin — a circumstance which later suggested to Peterson that the prosecution was eager for revenge. For his defense, Peterson hired esteemed trial lawyer David Rudolf.

In 2002, French documentarian Jean-Xavier de Lestrade, having just won an Oscar for his true crime documentary Murder on a Sunday Morning, was looking for his next project. Peterson’s trial appealed to him because it was just getting underway, and the documentary team would have an opportunity to do what few documentaries had attempted until then — film the full process of bringing a case to the courtroom. Ultimately, when their initial round of filming concluded in 2003, Peterson was found guilty of murder and sentenced to life in prison.

Little did the filmmakers know the journey for Peterson and their documentary was just beginning. Peterson would spend eight years in prison, exhausting his appeals — until new evidence, aided by the documentary itself, changed everything.

The Peterson case saw one twist after another

In many ways, The Staircase is a compilation of Rorschach tests: When you look at Kathleen Peterson’s death, do you see a fall down stairs, a brutal murder, or something else? When you study Michael Peterson, do you see an innocent man or a charming sociopath? When you listen to his 911 call, do you hear panic or calculation? And when you look at the evidence proffered by the state and rebutted by the defense, do you see proof or do you have reasonable doubt?

The Staircase has its flaws. It’s long, often spends too much time letting its main character talk about himself, and has come under fire for being biased in favor of the defendant. (More on that in a moment.)

But it’s also addictive. Michael Peterson, playing himself, is just strange enough to be the star The Staircase needed. He’s inappropriately charismatic, performatively debonair, and a polished liar. He quotes Shakespeare, listens to Mahler, tells the sex workers he hires how much he loves his wife, and writes first-person novel passages about the joy of committing murder. Yet whether you believe Peterson’s alleged dark side exists or not, on camera he also comes across as laid back and loving, missing his wife and heading a family stalwartly supporting his innocence. (Caitlin, Kathleen’s daughter, broke with her step-siblings in accusing Michael of murder.)

Peterson’s attorney also cuts a winning figure. Wry but earnest, David Rudolf systematically chips away at the evidence; he rolls with every prosecutorial punch (and there are many) until he’s created a thorough argument for reasonable doubt. His defense becomes a celebration of excellence.

Still, Peterson and Rudolf alone might not have been enough to make The Staircase the seminal true crime documentary series it became, had the case itself not unfolded in real time, on camera, with one whiplash-inducing turn after another.

A Barred Owl stretches its wings in an enclosure at Center for Wildlife in Cape Neddick
It’s here. It follows.

The first twist all but turns The Staircase into pure Southern Gothic melodrama: The prosecution, accessing Peterson’s computer (possibly without a proper warrant) discovered Michael was bisexual and had been engaging in homosexual dalliances on the side. It’s unclear whether Kathleen knew about Michael’s secret sex life, although he insisted she did. The prosecution’s demonization of Michael Peterson for his bisexuality became one of the focal points of the trial, with lawyers arguing it spoke to motive and called his entire character into question. Whether it actually does, like everything else in The Staircase, is debatable.

The second huge twist helped provide the documentary title. Over 15 years earlier, Peterson’s next-door neighbor Elizabeth Ratliff — the mother of Margaret and Martha, Peterson’s adopted children — was found dead at the bottom of her staircase. The last known person to see her alive? Michael Peterson. (One of the best moments in The Staircase comes in episode three, when Rudolf, learning of this development, simply reacts with: “Nope.”) Although the original autopsy concluded Ratliff died of a brain aneurysm, the coincidence of Peterson being the last known person to see two different women alive before they both wound up dead at the foot of stairs proved too wild not to explore. The prosecution exhumed Ratliff’s body and pushed hard to imply a connection between the two deaths, but this evidence just underscored how circumstantial the case against Peterson was.

The third huge twist gets captured on camera. The prosecution alleged the murder weapon was a Peterson family fireplace poker that had mysteriously “gone missing” — until the family found it collecting dust in the basement, blood-free. Years later, Rudolf learned police allegedly knew the fire poker wasn’t the murder weapon from the start.

The final huge twist ultimately won Peterson freedom. Duane Deaver, the prosecution’s chief witness, was a blood spatter expert employed in North Carolina’s state crime lab by the State Bureau of Investigation (SBI). According to The Staircase, jurors in Peterson’s trial were initially split over his guilt or innocence, but relied on Deaver’s blood spatter testimony to come to their guilty verdict.

The problem: Deaver had no training in forensics. During Peterson’s trial, he exaggerated his credentials and lied on the stand about his practical experience. Deaver claimed to have visited hundreds of crime scenes but had actually visited just 17. Due to these and other incidents of lab misconduct, the FBI audited the SBI and found the lab had withheld results favorable to the defense in hundreds of cases. Convictions across the state were re-examined. Many of them, including Peterson’s, were overturned. Today, blood spatter analysis, once so dominant in the field of forensics, is considered almost complete junk science.

Judge Orlando Hudson granted Peterson a new trial in 2011. Peterson remained released under court monitoring while awaiting a new court date. As captured in the final 2017 episodes of the Staircase documentary, Peterson pled guilty in 2017 under an Alford plea, which allows a defendant to proclaim their innocence while acknowledging the state has enough evidence to convict them. Whether the state actually did is dubious: For the documentary’s final episode, Judge Hudson reflected that if he were running the trial again, he likely would have disallowed testimony involving Peterson’s sexuality and disallowed testimony regarding Elizabeth Ratliff’s death.

Peterson’s trial had many side issues with prosecutorial team corruption, even beyond what we see in The Staircase. The district attorney who launched Peterson’s trial, Mike Nifong, was disbarred in 2007 because of extensive deceit and malfeasance regarding the Duke lacrosse scandal in 2006. Tracey Cline, the district attorney who argued against Peterson in 2011, was removed from the position in 2012 after a judge found she made statements “with malice and reckless disregard for the truth” about Judge Orlando Hudson, who oversaw the Peterson case.

During the trial, one prosecution expert witness, Saami Shaibani, exaggerated his connection to Temple University and had his testimony (which involved dubious experiments in which he observed volunteers falling down stairs) expunged from the trial record. To top it all off, the final episodes of the Staircase allege that assistant medical examiner Deborah Radisch, who autopsied Kathleen and ruled her death a homicide, initially felt her cause of death was blood loss, not blunt-force trauma. Rudolf alleges Radisch was pressured to change her initial opinion by the chief medical examiner.

All of these incidents of corruption show how stacked the odds were against Peterson. But the documentary proved to be a huge ally in his favor. In the 2011 hearing to determine whether Peterson would get a new trial, Rudolf used footage taken from The Staircase which captured how crucial Deaver’s testimony was for the prosecution. Both he and Peterson believe without The Staircase they might never have proven their argument.

De Lestrade’s work reveals its own biases. From the start, it frames Peterson and his defense as heroic underdogs fighting an unjust prosecutorial witch hunt. Part of this is a byproduct of access, since the Durham DA shut the film crew out of their investigation while the defense remained transparent throughout the court process. Still, the film crew’s fondness for Michael comes through both on camera and in the editing. The Staircase eventually abandons all pretense at objectivity.

That could be because there’s another huge twist you won’t find in The Staircase: French editor Sophie Brunet, who edited all 13 episodes of The Staircase, fell in love with Peterson during the process. She and Peterson corresponded while he was in prison and later dated for many years — all while she continued to edit the series! The new fictionalized series turns this into a large plot point, and it’s no wonder: The Staircase’s point of view is one of its main selling points, but its clear bias is also its Achilles’ heel. The documentary omits much of the case against Michael, including a possible motive: Kathleen’s hefty life insurance payout. Rudolf has pushed back against this idea, noting the prosecution backed off from a financial motive. But for many viewers, learning details like these outside of the documentary undermines its credibility.

Just in case you aren’t disoriented yet from all these record-scratch moments, there’s one last item we have to discuss.

The owl theory

Near the end of Peterson’s trial, the Petersons’ neighbor, lawyer Larry Pollard, came up with a startling new alternate theory for the case. Those weird scalp lacerations seemed to fit neither the prosecution nor the defense’s scenario for what happened to Kathleen. What if they were caused not by a mysterious weapon, but by the talons of an owl?

Pollard approached police, who ridiculed the idea, and Rudolf, who later told Vulture he wished Pollard had “realized it six months earlier” so it could have been a proper part of the defense.

The owl theory has become a standing true crime joke — but it has legions of proponents, including ornithologists. Not only do her scalp wounds look talon-shaped, but — wait for it — Kathleen was found holding feathers. Pine needles and twigs were also with her body, and blood was found on the outside of the house. What’s more, barred owls, which can be aggressive, were known to live in the neighborhood.

On its face the owl theory sounds absurd. But it explains the most irreconcilable aspect of the Peterson case: how Kathleen could have received those gouge-like scalp injuries but no skull fracture or contusion. The prosecution never explained this. The owl theory also accounts for Kathleen’s suspicious thyroid injury, an odd puncture wound which the defense likewise failed to address. Rudolf now keeps a section on his website enumerating reasons the owl theory makes sense.

In the years since The Staircase, Peterson has written his own book, Behind the Staircase. His children live private lives, though his son Todd recently filmed a bizarre video in which he accused his father of murdering Kathleen and deliberately failing to call 911 for Todd’s birth mother Patty, who died of a heart attack in 2021. No updates on these allegations have followed.

Meanwhile, The Staircase seems to grow more important as the years pass. Even with its subjective bias, it vividly reveals the character of a certain type of overprivileged white man at the turn of the millennium. Michael Peterson appears to be a modern-day Don Draper, skilled at lying, self-aggrandizement, and performing importance without actually being important.

It also reveals the daily workings of a troubled justice system, and the many ways an overzealous prosecution can misfire through shaky forensics, a reliance on moral panic, and grandiose speculation. We see why thorough trial defenses are so prohibitively expensive for the average low-income defendant, while also seeing just what a good defense money can buy. The Staircase ultimately shows us that even with all the money in the world, corruption in the judicial system can make a fair defense impossible.

Finally, that Rorschach test. The Staircase serves an early slice of the epistemic crisis in which we now find ourselves. “Sometimes I think they’re watching a different trial,” the late defense investigator Ron Guerette said at one point during the documentary, while watching court commentators dissect the case on Nancy Grace. Every aspect of this case remains debatable. Meanwhile, The Staircase’s influence over the modern true crime landscape shows no sign of waning.

As for who or what killed Kathleen Peterson, 20 years later we still don’t know. But with the arrival of the new series, sleuths discovering the case daily, and the Petersons continuing to draw our fascination, one thing seems clear: We’re not about to stop asking.

Then Donald Trump won the 2016 election despite losing the popular vote and proceeded to remake the Court along McConnell’s preferred lines.

First, he appointed staunch conservative Neil Gorsuch to the Court instead of Garland — preserving a 5-4 conservative majority on the court. Then longtime Republican operative Brett Kavanaugh was confirmed amid a furious battle over Christine Blasey Ford’s allegations that Kavanaugh sexually assaulted her, one of the most bitter and polarizing hearings in Supreme Court history.

And when Justice Ginsburg died in September 2020, McConnell and Trump rushed Amy Coney Barrett onto the Court before the 2020 vote — giving conservatives a 6-3 advantage, and revealing the alleged principle behind the Garland blockade to be a partisan fiction. (McConnell’s attempt to square this circle, citing an alleged norm against the Senate confirming nominations from opposite-party presidents in election years, was risible.)

By September 2021, the Supreme Court’s approval rating had fallen to 40 percent, the lowest number recorded in over 20 years of Gallup polling. The decline was largest among Democrats, but also visible among Republicans — who seem to be turning against institutions writ large in the wake of Trump’s 2020 defeat and subsequent claims that the election was rigged against him. Another September poll from Quinnipiac gave the Court an even lower approval rating, 37 percent, the lowest point in the firm’s polling since 2004. A third poll, released in November, found that 61 percent of Americans believed the Court was motivated mainly by politics rather than law.

In an April article, political scientists Miles Armaly and Elizabeth Lane show evidence linking the decline in Court legitimacy to the past few years of partisan warfare. By sheer luck, the authors began fielding a survey on the effect of confirmation battles on Court legitimacy in the weeks before Ginsburg died — allowing them to follow up with the exact same participants immediately after her death. They found that McConnell’s rush to fill the position with a Trump appointee decreased Democratic voters’ faith in the Court on a variety of different measures, without improving it among Republicans.

“Our results suggest the Senate’s increased politicization of Supreme Court confirmation hearings harm the Court’s legitimacy,” they conclude. “Attitudes regarding the Court — often marked by their stability — are impacted by the actions of the elected branches.”

Of course, the Court itself hasn’t helped matters. Since the Trump appointments, the Court’s jurisprudence has lurched hard right. Chief Justice John Roberts, seemingly the sole conservative concerned with the Court’s above-politics reputation, can no longer join four liberals to rein in his colleagues’ policy ambitions.

This is the context in which Alito’s Roe draft opinion emerged. Much of the concerns about the opinion’s effect on legitimacy have focused on the leak of the draft — on how it makes the Supreme Court look like any other Washington institution. But this is inside baseball: The much bigger effect on Court legitimacy is more likely to come from the ruling itself, if it in fact becomes law.

A recent paper by Logan Strother and Shana Gadarian, political scientists at Purdue and Syracuse, respectively, argues that the rise of extreme partisanship has changed the Court’s ability to issue controversial rulings and maintain its legitimacy afterward. In the current climate, they find, “policy disagreement with Supreme Court decisions leads individuals to view that decision, and the Court itself, as being political in nature” — which, they also show, damages the Court’s fundamental legitimacy.

Since 1989, every Gallup poll on Roe v. Wade has found steady public support for keeping the ruling in place. In the closest poll, conducted in 2008, supporters outnumbered opponents by 19 percentage points (52 to 33). By 2021, that difference had risen to 26 points (58 to 32). Three other recent polls find even stronger support for keeping Roe. The consistency of these results over time, together with the visibility of the abortion issue, suggests the public’s views are deeply held.

In this context, it’s fair to think Alito’s hardline ruling — overturning Roe entirely, in no uncertain terms — would further erode the Court’s already weakened legitimacy in the eyes of the public.

You’ll miss Court legitimacy when it’s gone

One reaction to a loss in Court legitimacy, increasingly popular among liberals and leftists, is to basically say good riddance.

The Supreme Court is a fundamentally undemocratic institution, one that has a long track record of reactionary decisions and a limited-at-best ability to promote progressive social change. Why shouldn’t a turn against it be cheered?

“Diminished public trust in the Court is a good thing,” as my colleague Ian Millhiser recently put it. “This institution has not served the American people well, and it’s time to start treating it that way.”

I agree with much of Millhiser’s critique of the Court. There’s a compelling argument that weakening its powers of judicial review — by, for example, adapting a model used in Canada, the UK, and New Zealand that gives legislators power to reject court rulings — could lead to both superior policy outcomes and a more democratically legitimate system. In theory, a decline in public faith in the Court could pave the way for fundamental reforms to its practices.

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Trump Supreme Court appointee Justice Amy Coney Barrett (second from right) was confirmed by a Senate vote of 52-48 on October 26, 2020.

But changes to judicial review are exceedingly unlikely to happen in the near term, as are liberal proposals to add more seats to the Court or to end lifetime tenure. For now, we have to operate in a context where the Supreme Court still plays an essential role in the American political system. And especially in the context of a 2024 election where Donald Trump is likely to run again, the Court’s inability to credibly perform that role could precipitate a democratic crisis.

It is likely that there will be significant litigation surrounding the 2024 contest. The Supreme Court has final say on voting procedures, and the nature of its rulings will affect the way the public views the legitimacy of the election itself.

In the nightmare scenario, the Supreme Court could be called on to adjudicate a Republican effort to overturn the results of a Biden victory at the state level. The groundwork for such an effort, as Barton Gellman wrote in the Atlantic, has already begun:

For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.

If the Supreme Court rules in favor of Trump’s claims on anything like an issue of this significance, there is a very real chance that large numbers of Democrats do not accept the ruling as legitimate or even binding, regardless of the merits.

This is not implausible, even though the federal judiciary held firm in the litigation surrounding the 2020 election. Gellman notes that four conservative justices have already signaled support for the so-called “independent state legislature doctrine,” which would give state legislatures untrammeled authority to set election rules and even toss out election results. If they used this idea to effectively authorize such an undemocratic action, who could blame Democrats for rejecting the Court’s decision?

Nor does the Roberts Court’s pro-GOP tilt guarantee legitimacy if it rules in favor of Biden. In that scenario, Trump and his allies will almost certainly claim the Court has been corrupted — and will likely persuade most Republican partisans. Think about the way Trump has turned against staunch Republican officials, like Georgia Gov. Brian Kemp and Secretary of State Brad Raffensperger, who had the temerity to accurately conclude that the 2020 election was on the level.

Indeed, Republican Ohio Senate candidate J.D. Vance has already proposed ignoring Court rulings that might get in the way of a second Trump term’s agenda:

I think that what Trump should do, if I was giving him one piece of advice: Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts stop you, stand before the country, and say “The chief justice has made his ruling. Now let him enforce it.”

If any major faction rejects a Court ruling in the way that Jackson rejected Worcester, we will be thrust into a constitutional crisis. That’s a recipe for instability, even outright civil violence — something we all now know to be a real possibility.

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In the context of a 2024 election where Donald Trump is a candidate, the Supreme Court’s inability to credibly perform an essential role in the American political system could precipitate a democratic crisis.

It’s important to be clear on who deserves blame for this state of affairs: It’s McConnell, Trump, and the Court’s conservative majority. They chose to politicize the Court and turn it into a vehicle to enact conservative policy they couldn’t pass through the legislature. Seizing control of the Court for this purpose is one of the biggest reasons — arguably the single biggest — why Republican elites decided to embrace Trump as fully as they have.

So, yes, it is good in one sense that the American people are recognizing what has happened to the Court. But the fact that it’s happened at all is a tragedy: The Court may not be a great institution in the long arc of history, but it performs a necessary function in our system as currently designed. What we’re seeing now is a particularly important example of the degree to which America’s democratic institutions are degrading — and even at risk of failure.

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