May 4, 2022

Supreme Court Leak

The Supreme Court on Tuesday morning confirmed that a draft opinion in Dobbs v. Jackson Women’s Health Organization, published by Politico on Monday night, is authentic. In a press release, the court stressed that the draft opinion, in which a majority of the court appears poised to overrule the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey, is not a final decision by the court. And Chief Justice John Roberts indicated that he has directed the court’s marshal to launch an investigation into the source of the leak.” SCOTUSblog

Many on both sides condemn the leak:

“A leak like this is unheard of. It’s a terrible blow to the court’s morale and process and legitimacy. It hardly matters whether it was leaked by liberals trying to shock the nation’s conscience, by conservatives trying to bolster the confidence of potentially wavering justices, or by some disgruntled employee looking for a thrill or money or something else. Whatever the leaker’s motive, the result is very bad. Leaks are damaging for the court because the rule of law should speak with a final voice, not a tentative one. A draft opinion is a tentative thing, a work under development. It isn’t the law…

“Negotiations about opinions follow an internal logic — and a private one. If this draft can be leaked, anything can be. That changes the game, probably forever. Justices won’t be able to make suggestions or proposals without worrying about them becoming public. The whole way the court reaches decisions is now poised to change. Then there is the loss of trust. All the justices will surely blame other chambers for the leak. Suspicion, doubt and distrust will follow… Judicial legitimacy is a delicate thing. As of Monday night, it is substantially reduced.”

Noah Feldman, Bloomberg

“One question is how fast the Court should now move to publish its decision in Dobbs v. Jackson Women’s Health Organization. There’s an argument for getting it out fast to make it a fait accompli. Politico said the Alito draft was circulated in February, so the Justices have had ample time to absorb it and respond. We hate to say this, but some abortion fanatic could decide to commit an act of violence to stop a 5-4 ruling. It’s an awful thought, but we live in fanatical times…

“Our guess is that the leak is likely to backfire at the Court. A Justice who switched his or her vote now would be open to ridicule for wilting under pressure. It would also invite more leaks in the future by showing they get results. A pattern of pre-emptive leaks of draft opinions would destroy the Court.”

Editorial Board, Wall Street Journal

Other opinions below.

See past issues

From the Left

Of course the original Constitution says nothing about abortion, or about women at all. It was written in the late 18th century by a conclave of a few dozen men, all white and most wealthy, including more than a few slaveholders. Any talk about the reproductive rights of women, who could not vote or play any meaningful role in politics, would have been foreign to them. Over two centuries, the nation has rejected the worst of the founders’ beliefs and values and sought to respond to the needs of a growing and changing society, either through constitutional amendments or modern interpretations of the text they created…

“Roe v. Wade is one of those interpretations, an effort to bring Americans’ expanding concept of rights and freedoms into line with the Constitution’s broadly worded guarantees, to connect the past with the present and the future. It is not perfect — no Supreme Court ruling is — but it was an essential step on the path to achieving full equality for more than half of the nation’s population.”

Jesse Wegman, New York Times

“Americans rely on the court to exercise care and restraint against making sharp turns that might suddenly declare their everyday choices and activities unprotected or illegal. Over the course of nearly half a century, the court not only issued Roe but upheld its bedrock principles against later challenges. Throughout, the original 1973 decision enjoyed broad and unwavering public support. What brought the court to its current precipice was not a fundamental shift in American values regarding abortion. It was the shameless legislative maneuvering of Senate GOP leader Mitch McConnell (Ky.)…

“In his draft, Justice Alito points out that the court has overturned many cases in the past, including the atrocious Plessy v. Ferguson, which permitted racial segregation. But the court has never revoked a fundamental constitutional right. Overturning Plessy expanded liberty. Overturning Roe would constrict liberty — and be a repugnant repudiation of the American tradition in which freedom extends to an ever-wider circle of people.”

Editorial Board, Washington Post

Some note, “For most of its history, the Supreme Court was a nakedly reactionary institution. The Court destroyed civil-rights laws in the 19th century and progressive economic legislation in the 20th, right up until midway through the New Deal… [In recent years] Americans — liberals in particular, and boomers especially — have been suffering from a misplaced faith in the Supreme Court as the guarantor of rights and liberties. The right to abortion will not be secured by the occupants of a gleaming marble building. It will be the work of politics — activism, persuasion, and voting — that will control its fate.”

Jonathan Chait, New York Magazine

From the Right

Roe's champions venerate it as ‘settled law,’ but the 1973 Supreme Court decision legalizing abortion never settled the debate. It has raged ever since, poisoning the judicial confirmation process as the nation's highest court became its foremost abortion policymaking body. Roe has turned presidential elections, Senate races, and Supreme Court vacancies into something approaching a battle to the death…

“Even many supporters of legal abortion have concluded Roe was a shoddy piece of judicial work. It relied on fraudulent historical claims and bad science that 1992's Planned Parenthood v. Casey unsuccessfully sought to update…

“The noted legal scholar John Hart Ely memorably said Roe ‘is not constitutional law and gives almost no sense of an obligation to try to be.’ Even from a pro-choice perspective, abortion rights might have been more secure if the product of democratic consensus rather than seven justices — all men, by the way — in the 1970s.”

W. James Antle III, The Week

“[Alito] tellingly notes the many times the court has overruled earlier decisions — a list that includes progressive staples such as Obergefell v. Hodges (establishing a right to same-sex marriage) and Lawrence v. [Texas] (establishing a right to intimate same-sex relations). Indeed, the most famous example is Brown v. Board of Education, which overruled Plessy v. Ferguson’s execrable ‘separate but equal’ doctrine. Alito’s message to the left: What’s good for the goose is good for the gander.”

Henry Olsen, Washington Post

“The public lack of knowledge about Roe — and its conflict with actual public opinion on abortion — was captured well by a Fox News poll last September, which found that 65 percent of Americans said they oppose reversing Roe. But, absurdly, the same survey found that respondents were perfectly split on whether abortion should be legal, tied at 49 percent. A substantial number of Americans, in other words, both want abortion to be illegal and want to preserve jurisprudence making it essentially impossible to prohibit abortion…

Polls that ask Americans for their views on specific abortion policies tend to find that most Americans disagree with the status quo created by the Court in Roe and Doe v. Bolton and bolstered in Casey — namely, that abortion must be legal across all 50 states, for nearly any reason, and at nearly any time in pregnancy. For instance, a Gallup poll from a few years back found that only 28 percent of Americans favor allowing abortion in the second trimester, and only 13 percent of Americans favor allowing it in the last three months of pregnancy — compared to 60 percent who would allow it in the first trimester.”

Alexandra DeSanctis, National Review

A libertarian's take

“Last year, based on a scenario in which 22 states banned abortion, Middlebury College economist Caitlin Knowles Myers projected that the annual number of abortions in the U.S. would fall by about 14 percent. In Texas, which banned the vast majority of abortions last September and avoided early judicial intervention by restricting enforcement to private civil actions, the net impact seems to have been a drop of about 10 percent…

“Even in states that ban elective abortions, workarounds will mitigate the impact of those laws… Those options, which include traveling to clinics in other states and obtaining pills for self-induced abortions, will entail additional time, effort, cost, and in some cases legal risk. The new burdens will be prohibitive for many women, especially those with low incomes, inflexible work schedules, or pressing family responsibilities. But the net effect will not be nearly as dramatic as pro-life activists might hope or pro-choice activists might fear.”
Jacob Sullum, Reason

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