Thoughts on Supreme Court leak


If a Politico report based on a shocking leak is accurate, the Supreme Court is poised to overrule its wayward abortion precedents when it decides Dobbs v. Jackson Women’s Health, the case involving Mississippi’s law banning most abortions after 15 weeks of pregnancy.

If the news is true, my reaction mixes joy with indignation.

When I first started reading Justice Samuel Alito’s draft Dobbs opinion (which Chief Justice John Roberts has confirmed as authentic), my initial thoughts were that this was everything conservatives could have hoped for — an utter repudiation of the weak constitutional arguments in Roe and a rejection of the majority opinion in Casey affirming a bad decision on stare decisis grounds. But then, a combination of my lifetime as a Cowboys fan and PTSD from the Obamacare decision set in, and a dreadful thought came over me: what if one of the votes to overturn Roe has gone wobbly and this draft was released by an angry and disillusioned conservative rather than a resistance liberal?

The truth is, there has been educated speculation on who the leaker might be, and what it might mean for the future of Roe. But this was a draft that was circulated two months ago and the final decision may be nearly two months away, so, it’s hard to say. Another scenario is that at the initial vote following oral arguments, there was a majority at least open to overturning Roe, but not 100 percent committed. So, it was decided that Alito would write an opinion making his strongest case possible for going all the way, so anybody undecided could have a chance to weigh in. But we don’t know.

So, while the leak itself was egregious and the significance of the act should not be downplayed, at the same time, I’m not sure it ultimately changes the calculation of what we can expect once the final decision is in.

Put another way, were we having a debate today about what the Supreme Court is likely to do about Roe in the absence of a leak, the consensus would probably be something close to: There’s a good chance it will be overturned, there’s a chance a conservative will go wobbly, and Roberts is likely seeking a way to uphold Mississippi’s law banning most abortions after 15-weeks without fully overturning Roe. And I think that’s more or less where we still are.

The leak includes a 98-page draft opinion said to have been authored by Alito on behalf of a five-justice majority that emerged after Dobbs was argued in December. That majority reportedly includes four other conservative justices: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The report, based on an unidentified source within the Court, indicates that dissents are being written by the Court’s three progressive justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan). The source says it is unclear how Chief Justice Roberts has voted on the case. CNN claims to have unnamed “sources saying that Roberts would vote to uphold Mississippi’s law but does not want to overturn Roe v. Wade.”

Had Roberts been in the majority, it would have fallen to him as chief justice to assign the majority opinion — a task he has been wont to assign to himself in major cases. If the chief justice is not in the majority, the opinion is assigned by the most senior justice in the majority. If the report is accurate, that would be Justice Thomas, a close ally of Alito on most issues, including abortion cases.

With everything else said, the draft opinion reflects a welcome repudiation of Roe, a debacle that barely pretended to grapple with the Constitution in purporting to discover within it a fundamental right to terminate the life of unborn children. It would also scrap Planned Parenthood v. Casey, which struggled to retain Roe’s bottom-line ruling while overhauling its embarrassingly infirm underpinnings.

As I have repeatedly pointed out, a reversal of the Court’s gratuitous intrusion into the political controversy over abortion would not outlaw the procedure. The Left’s sky-is-falling hysteria notwithstanding, such a ruling would merely restore democratic self-determination. The federal courts would end their usurpation, and the states and perhaps Congress would decide whether to permit abortion, and how extensively to regulate it. Some legislatures are ready to protect unborn life; others would doubtless fortify legal abortion.

My outrage stems from the apparent leak of an opinion.

The legitimacy of the Supreme Court’s vital constitutional duty to pronounce authoritatively what the law is in cases where it is called to do so hinges on the integrity of its process. The Court has thus been admirably disciplined about maintaining the secrecy of its deliberations until rulings are announced. Without that discipline, the Court’s decision-making would be subjected to intense political pressure — the very antithesis of a system that insulates the judiciary from politics so that cases can be decided pursuant to law, without fear or favor. The Court’s vital constitutional role, vindicating a rule of law not men, would be destroyed. Worse, the leak could inspire violence against the Court or the justices.

Either would be intolerable.

If the leaked opinion truly reflects the majority decision, that decision — as refined to this point — should be issued immediately as such. Publication would avoid the scandalous appearance that the Court’s rulings could be swayed by leaks and political pressure. Justices who plan to dissent could still do so at their leisure.

In the meantime, Congress and the executive branch should stand ready to use their resources to do what the Court is institutionally incapable of doing: conduct full-blown investigations to identify and hold any leakers accountable.

I have championed the pro-life movement and called for the reversal of the Roe abomination. I would take a backseat to no one in celebrating the monstrous abortion regime’s demise. But the Supreme Court’s restoration of constitutional order ought to accompany a restoration of the Court’s norms. The leak is intolerable and cannot go unpunished. And Roe should not stay on the books a moment longer.

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