Unprecedented Leak Indicates SCOTUS Will Overturn Roe
If it stands, Justice Alito’s blistering draft opinion would be a momentous move toward Rule of Law.
“We hold that Roe and Casey must be overruled,” Supreme Court Justice Samuel Alito writes in a leaked draft ruling in Dobbs v. Jackson Women’s Health Organization. There are two big stories here, really — that the Court will seemingly issue a hugely consequential ruling overturning two of the worst decisions in its history, and that someone leaked a February 10 draft of the decision weeks before the ruling is handed down.
We’ll start with the virtually unprecedented leak. Former acting Solicitor General Neal Katyal said that “there has never ever been such a leak” from the Court, arguing that it’s “the equivalent of the pentagon papers leak.” In breaking the news, Politico said, “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”
SCOTUSblog said: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
The fact that Politico, a leftist rag, was the recipient of the leak likely means the source was an activist on the left side of the Court. Immediate speculation centered on the intent of the leak, which is almost surely to intimidate the justices and influence an outcome not yet set in stone.
“Deliberations on controversial cases have in the past been fluid,” Politico innocently reports. “Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.”
Indeed, vote changing is exactly what happened in the case that might have set the precedent for such political pressure — Chief Justice John Roberts’s infamous 2012 ruling on ObamaCare. Roberts initially sided with conservatives and the Constitution to strike down ObamaCare before changing his mind at the last minute and rewriting the law in order to save it, as well as to supposedly protect the Court’s reputation for neutrality on political issues.
And no sooner did Politico’s story break than, lo and behold, protesters showed up at the Court in DC to demand fealty to the demented religious dogma of killing preborn babies. The media went bonkers, hand-wringing over the Court’s legitimacy and reputation.
The Washington Post used those exact words, fretting that the leak and the ruling “may prove to be a major blow to the court’s legitimacy and reputation.” It is ironic beyond measure that Roberts’s apparent obsession with “legitimacy and reputation” above all other considerations may be the reason both are undermined.
Rumors were swirling just last week that Roberts was attempting to persuade a conservative justice to uphold Roe and Casey to protect the Court’s reputation and precedent. (The fact that Alito wrote the opinion could mean Roberts at least partially sided with the Left. Again.) If it turns out that the leak was meant to aid Roberts’s efforts to change votes, or if it was retribution for Roberts having failed, the chief justice will have only himself to blame.
George Washington University law professor Jonathan Turley called it “the greatest crisis that Chief Justice John Roberts has faced in his tenure on the Court.”
That’s why “Roberts has an absolute obligation to conduct a thorough and transparent investigation,” argues Josh Blackman. “And at the end of that investigation, Roberts must publicly identify the persons who are responsible for this leak — that includes Justices and clerks. Heads must roll.”
It sounds like that will happen. Roberts confirmed the breach, downplayed its significance in terms of the resulting decision, and directed the marshal of the court to investigate this “egregious breach of … trust.” He added, “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.”
The other reason the leak was likely a leftist ploy is that Democrats hope to rally women voters ahead of the midterms. Politico also issued that
report press release for Democrats shortly after breaking the leak, saying that it “instantly jolted Democrats from a bout of political malaise Monday night — and many hope it could change the tide of the midterm elections.”
Joe Biden issued a statement arguing that “a woman’s right to choose is fundamental” and promising to work toward “legislation that codifies Roe.” Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer released a joint statement lamenting such a decision as “an abomination” and the “greatest restriction of rights in the past fifty years.” Congressman Sean Patrick Maloney (D-NY), chair of the House Democratic Campaign Committee, dubbed it “the central choice in the 2022 election.”
And don’t forget Court-packing. Leftists certainly haven’t. “Overturning Roe would put the lives of women across the country at risk,” cried Representative Ilhan Omar. “It would fly in the face of decades of precedent and the overwhelming majority of public opinion. And they will not stop here. Expand the court.” There will be a renewed push for Democrats to eliminate the Senate filibuster as well — either to pack the Court or to codify abortion into law, or both.
Democrats always want to change the rules when they don’t get their desired outcome.
Speaking of outcomes, let’s turn to the decision itself. Assuming the leaked draft ends up being close to the final ruling, Alito minces no words.
“Roe was egregiously wrong from the start,” Alito writes. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
He’s not alone, by the way. No less a feminist icon than the late Ruth Bader Ginsburg once called Roe an “unnecessary” and “extreme … court intervention” that wrongly “halted a political process.”
Alito continued: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
What of state laws? “At the time of Roe,” Alito noted, “30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State.”
The Court having seized control over the issue is exactly why abortion became so politically contentious.
Assuming abortion law is returned to the states where it belongs, it would become illegal or restricted in 13 states with more no doubt to follow. Yet blue states would retain laws permitting the barbaric practice, and probably even expanding it as Colorado recently did.
Ultimately, the consequences of this decision cannot be understated. Even more so if the leak either changes a justice’s vote or the result itself. The Court should issue the opinion post haste so as to counteract any more political shenanigans.
In the meantime, we pray for the people most directly affected by this — women in crisis pregnancies and the baby girls and boys they carry in their wombs.
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