[guest post by JVW]
The Internet is abuzz with the leak of a draft opinion of what appears to be the majority decision in the Dobbs v. Jackson Women’s Health Association case currently in front of the Supreme Court. The draft, authored by Justice Samuel Alito with at least four other Justices signing on, suggests that the court is poised to strike down both Roe v. Wade and Casey v. Planned Parenthood, the two decisions which codified abortion as a sacrosanct right and made it to supporters what my own senior (very, very senior at that) Senator Dianne Feinstein likes to call a super-precedent which absolutely could not be abridged by man nor God.
According to the draft, first obtained by Politico, Justice Alito writes: “Roe was egregiously wrong from the start. 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.” At the end of the decision, he concludes: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” As NRO points out, this is a draft opinion and could very well be changed before it is officially released, but at this point the tea leaves seem to indicate that Roe will at long last be overturned.
So who exactly leaked the draft to the media? Over at Powerline, Steven Hayward sees the handiwork of progressive Democrats who are trying to ignite a firestorm which they hope will force Chief Justice Roberts and either Justice Gorsuch or Kavanaugh or perhaps even Barrett to get cold feet. In fact, Prof. Hayward makes an outright accusation which is not at all out of the realm of possibility:
A complete draft opinion has never leaked from the Supreme Court before, and it has long been understood that anyone (especially a law clerk) who leaked an opinion would be kissing their legal career goodbye. This is why I think the leak probably came from one of the Justices. And my money is on Sonia Sotomayor, who is by far the most politicized Justice on the Court, though she will soon have company when Ketanji Brown-Jackson joins the Court.
Alexandra Desanctis also believes that this leak surely came from one of the Court lefties and that it is designed to whip up protests to intimidate wavering members of the conservative bloc. She is joined in this assessment by Kathryn Jean Lopez. Considering that Democrats were so fond of lecturing all of us about “dangerous departures from the norms” and that they have essentially said that citizens seeking to be heard by the the people they elect to represent them (which is substantially different than appointed judges, by the way) are perhaps engaging in domestic terrorism, it’s a little bit rich but unsurprising that they have resorted to underhanded tactics like this when their backs are up against the wall. Naturally, the usual media fatheads are downplaying the nature of how the draft was obtained by Politico, deeming the actual draft contents — which I remind you would have mostly been eventually published anyway — to be far more important.
Dan McLaughlin predicted the likely emergence of a leak way back in December:
There is another question, though, that I wonder about: If the Court is doing something as dramatic — and as upsetting to the sorts of people who clerk for the liberal justices — as overturning Roe, will it be able to keep that a secret for seven months? The Court in modern times has had a remarkable record of keeping the justices, the law clerks, and the rest of the Court’s personnel sworn to secrecy about even the most momentous pending cases. Rumors have cracked that more often in recent years, especially in Obamacare cases, but we have never really seen the dam break. It will be quite impressive if it can keep a secret this time — and if it can’t, we may see a pressure campaign on the Court (or worse, violence) unprecedented in modern times.
NRO makes reference to a CNN report which claims that the Chief Justice will not join the Alito opinion to completely dismantle Roe and Casey, but he will concur in allowing the Mississippi restrictions on abortion to stand. Assuming no other votes switch, this kind of makes the replacement of Ruth Bader Ginsburg by Amy Coney Barrett a really big f______ deal, as our President was fond of saying to his old boss. And it’s a delicious irony that the Notorious RBG’s selfish insistence upon dying on the Court is what might ultimately undermine the nearly half-century abortion regime in the country that she so staunchly supported. Yes, it will make elements of the left go absolutely nuts, all the more reason that I hope to witness it with my own eyes.
UPDATE BY PATTERICO: Thanks to JVW for writing this up. I have some thoughts.
First, I hope they find the person (likely a clerk for a leftist judge) who leaked this thing, and fire and disgrace them. This is unacceptable behavior and it should be a career-ender for any position of trust. If that person thinks their promise of confidentiality means nothing, they can be a journalist, but not a lawyer.
Guaranteed it was someone on the left, and I believe it was a clerk and not a justice. They should be ashamed. They are contributing to the politicization of one of the few institutions left that commands the trust of the people. Even to the extent that you might think the Court politicized, it makes a point of giving reasons for its decisions (the controversial “shadow docket” aside), which must withstand scrutiny and argument from the other side. It’s nothing like the politicization of Congress and the presidency, and if you can’t see that, then you have trouble making distinctions and I feel sorry for you.
Second, the expected result is not a surprise. Ed Whelan has an excellent summary of the opinion here. To me, this summary by Whelan of the introduction says a lot:
There is no explicit or implicit right to abortion in the Constitution. Abortion is not within the category of rights that have been held to be guaranteed in their substance by the Due Process Clause. Far from being deeply rooted in the nation’s history and implicit in the concept of ordered liberty, it was a crime at all stages of pregnancy in three-quarters of the states when the 14th Amendment was adopted.
This is the critical point, and I highlighted it in December after the argument:
One more question to highlight, from Justice Alito:
JUSTICE ALITO: The brief for the American Historical Association says that abortion was not legal before quickening in 26 out of 37 states at the time when the Fourteenth Amendment was adopted. Is that correct?
MS. RIKELMAN: That is correct because some of the states had started to discard the common law at that point because of a discriminatory view that a woman’s proper role was as a wife and mother, a view that the Constitution now rejects, and that’s why it’s appropriate to do the historical analysis at a higher level of generality.
JUSTICE ALITO: In the face of that, can it said that the right to — to abortion is deeply rooted in the history and traditions of the American people?
This will be central to Justice Alito’s opinion, and I bring it up because the question well highlights the flaw in that silly article I critiqued at my Substack (which you can subscribe to here) claiming that there is an “originalist case for abortion.” The point here is: an originalist case for abortion cannot be shown by showing that several states allowed abortion when the Fourteenth Amendment was adopted. Any such case is torpedoed by a showing that several (and actually a majority) of states banned abortion. Given that, how can anyone show that abortion meets the Supreme Court’s definition of a fundamental right — which is a right that is “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Those are quotes from Washington v. Glucksberg (1997) 521 U.S. 702 and you are going to see them in Alito’s opinion. (If he writes one, and I think he will — at least a concurrence.)
Always trust content from Patterico.
Third, the reaction from the left is predictable. Here’s a smarter person from that crowd:
The most pernicious thing in the entire leaked Alito opinion is that rights are only protected if they are "deeply rooted."
The only deeply rooted rights in America are those designed to protect cis white men.
— Mike Dunford (@questauthority) May 3, 2022
The only ways around this are to pretend an amendment means something different than it was originally understood to mean, or pass a new amendment. Only the latter is a legitimate exercise of power.
Also, pretending this is a new concept is not really being straightforward with the non-lawyers. People need to understand that this was also the standard before 2022.
I assume the justices will hold fast and not let this pernicious leak affect them.
It’s about time this atrocity was overruled. Soon.
UPDATE x2 BY PATTERICO:
I believe all nine Supreme Court justices should require all of their clerks to sign a statement, today, *under penalty of perjury,* that they did not participate in this leak. Anyone who refuses to sign should be fired on the spot.
— Patterico (@Patterico) May 3, 2022