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Politico: SCOTUS Striking Down Roe v. Wade According to Leak
Do we trust Politico? Can we trust a leak from the most leak-free branch of the government? Here’s their breaking story:
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
This is all very, very odd. The Supreme Court is famed for not leaking decisions before they are officially announced. In the past, there hasn’t been even a hint of which way a pending case may break. If the leak is accurate, it violates a sacrosanct tradition which will damage the court’s reputation and congenial relations between the justices and their staff.
The 98-page draft allegedly came “from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
One Alito quote reads: “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.” The leaker claims Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett agree with Alito.
If the leak is genuine and Roe v. Wade will be overturned, I think this helps the conservative side, at least slightly. It lets some hot air out of the balloon before the official announcement, lessening any possible midterm blowback. Far, far more importantly, it will save babies’ lives.
Published in General
Does it?
I would have expected nothing less. The judiciary–a supposedly co-equal branch of government (please correct this foreigner if She is wrong about that)–is about to discover what it’s like to be subjected to, and torn apart by, the whims of political hacks up to and including the one occupying the Oval Office, and by their mind-numbed robots among the media, the glitterati, and the Twitterati.
If I were disposed to make lemons out of lemonade (or vice-versa) at this point, I suppose I’d point to the Democrats’ (Bernie Sanders–a “D” in fact if not in law–and AOC, among others) desperate pleas that “Congress must act” to prevent the judiciary from changing current and “settled” law. (Hello. Doesn’t your party–or at least the one with which you caucus in Bernie’s case–control the White House, the Senate, and the House? So why haven’t you done it already?)
One of the most destructive features of life in these United States over the past 60 years or so has been the Left’s deliberate strategy of using the courts to effect social change because their legislators are too chicken to vote their beliefs–ones they know are out of step with the majority of their constituents, whom they often view as illiterate clodhoppers and ignorant fools. (I think a number of Republicans have taken the line of least resistance too.) If we’re about to have a discussion about this unfortunate state of affairs in the public square, and if it leads to some accountability among elected officials, and their chances of being elected again based on the legislation they propound and how they vote on it, that might be a very good thing.
The response to the leak by the Dems in Congress will be more harmful than this leak. Punished for violating what law?
El Oh El
I learned from a Constitution podcast that the thought the branches are co-equal is incorrect. Congress has more power. For example, they have the ability to fire the other two branches, through impeachment. Neither of the other two branches can remove a member of Congress. The hosts claimed that the thought the branches are co-equal was started by the Nixon administration.
I was surprised by the vitriol and hate spewed forth by Speaker Pelosi and Senate Leader Schumer against Supreme Court Justices. Pelosi and Schumer have both said intemperate things in the past, but this is a new level of hate, and if it is an indication of how Democrats are going to respond, then we are in for a period of even greater harm from hate and division than even their irrational responses to Trump were.
Doesn’t that tell us that it was never about President Trump?
Indeed, many states had already passed laws legalizing abortion before Roe was even decided, and those are still on the books.
This is why I doubt the Dems will be in any great hurry to stack the Court. It won’t affect them personally, most either live in a blue state or at least have one nearby. Meanwhile they can play the same game the GOP has for years and use the issue to fundraise and fire up their base while doing little about it.
Unprecedented? Granted I’ve never actually read Brown v. Board of Education, but I’d venture it amounted to a full-throated repudiation of Plessy v. Ferguson.
I have heard the possibility that someone got the draft by hacking the email system of the Court, but most of the legal discussions seem to assume a person inside the Court as the leaker. If so, I am with those who would suspect a law clerk. The justices themselves have too much riding on the need for absolute trust among them for years to come, and even a low-watt person like Justice Sotomayor would recognize that leaking would do long term damage. My understanding is that it is unlikely that non-lawyer staff is the leaker, as such staff has little or no access to circulating draft opinions.
I am completely baffled about the career thinking that would lead a Supreme Court law clerk to make such a leak. The only substantive motive I can think of for a leak is to foment public pressure to get one or more justices to change his or her vote. But such an outcome (a justice changing a vote in response to a public pressure campaign) is by no means certain. And maybe even more doubtful once the public has the information to confirm that a justice can be swayed by public pressure.
I assume the leaker will be identified. I suppose the leaking clerk could have convinced himself or herself that he or she had so thoroughly covered the trail that identification is impossible, but that is a risky assumption.
Several comments here have speculated that the leaker will have lucrative opportunities at leftist think tanks, media organizations, and professorships. But how long can the leaker milk those opportunities? Especially if the public pressure campaign is not successful? A few years at most (except maybe the professorships)? In the meantime the leaker has cut off almost all opportunities to have a lucrative career (million dollars a year plus) that could span decades at a law firm. No respectable law firm will hire the leaker, since the leaker has already conclusively demonstrated that the leaker is unworthy of being trusted with client and firm confidences. (To head off the jokes, a disreputable law firm also will not hire a leaker, since a disreputable law firm has even more client and firm confidences that need to be kept secret.) Many former Supreme Court clerks eventually become judges. That career option is also now completely off the table for the the leaker.
So, the leaking law clerk has made an extremely risky career move that has immediately closed almost all of the career opportunities routinely available to former Supreme Court clerks. To open up maybe a few uncertain and likely temporary fame opportunities. A high risk career move for a speculative result. I guess of such people are gamblers made.
Hmmmm. Good question .
There’s no disincentive to leaking as the Trump era proved. Rather, one’s career trajectory gets a sudden afterburner boost.
Congress just won’t use its power and gives it all away.
I would like to think this will happen.
But I think that the leaker will be rewarded.
Going a bit far afield here, but I’ve said several times on various threads here on Ricochet, the fundamental problem that the American government is suffering from for the last 20-plus years is that we have a Legislative branch that refuses to Legislate. We haven’t had a budget since the Clinton Administration, and what legislation they do pass tends to be stuff along the lines of “The Secretary of <department> shall issue regulation to <whatever>.”
Fix that problem, and you resolve a lot of issues of governance.
My personal preference would be a Constitutional Amendment such that no executive branch regulation can take effect without a positive affirmative vote of the Congress. Make Congresscritters accountable for what the government is doing.
I hear Obstruction of Justice would apply.
A President could do this with an executive order. Congress won’t take its power back. The members literally go to the Administration and beg them to write regulations so they don’t have to take votes.
The three branches of our government are not equal. Congress is the most powerful of the three branches, not just because of what it can do, but because of what it refuses to do.
But lots of clients want a lawyer with flexible morals. Hillary is such a person.
Pretty sure such clients want a lawyer with flexible morals in applying the law, not in violating confidences.
Heyyy! That’s uncannily accurate. Has someone been leaking to you?
It’s not settled yet, is it? So the Chief Justice is holding his cards. Let’s stipulate that Roberts would prefer not to overturn Roe, but his considerations regarding the station and stature of the Court take precedence (whatever they are.)
So if the media can strip a vote from the right, then Roberts will vote with the left and it’ll be 5-4 for them. If Kavanaugh and Gorsuch hold firm then Roberts might do the right thing for his own reasons, and we’ll have a nice historical 6-3.
I don’t think that’s true – The Executive Branch can’t force the Congress to do anything.
And it needs to be a Constitutional Amendment so that it *HAS* to happen, and can’t just be waived by executive order when the President feels like it.
That’s brilliant. He wouldn’t be forcing Congress to do anything, he’d be directing the Executive Branch not to take further action without express authorization from Congress.
As it should be. The House was set up to be directly and frequently held to account to the people.
l- whoever leaked it is a lefty- ends justify means ideology
2- leaker already has a lucrative insurance policy in place in case he is exposed
3- wouldn’t it be funny if Alito sent a slightly different draft to each justice so if the document is leaked, it could be traced
4- what if the purpose of the leak was to energize their militant arm to protest at justices’ houses and threaten the safety of the justices’ family members? Only one justice would he needed to cave if it is 5-4.
That’s informative and makes some sense, thanks. I guess, if I wanted to argue the other side, I might start from the standpoint that–at least as it relates to the federal judgeships–it’s only fair that them what make you can break you, which I think is what the impeachment process is for, should those judges violate the standards of “good behavior” which they have pledged to uphold. Otherwise, as unelected officials lifetime appointments and huge power, they’d be unaccountable to anyone.
Members of Congress, should they violate whatever ethical standards are in play at any given moment (I’m at a bit of a loss to be more specific than that as to what they might be at this point in history, to tell the truth), are always subject to recall and removal by the folks who made them, namely the voters.
As is the President, who seems like the anomaly to me, since he has to consider that he may be thrown out by the voters in the next election, as well as impeached by Congress should he earn its disfavor in ways both great and (we have learned) small. Since he’s the only one in any of the branches who is (as far as I know?) term-limited, this seems a bit out of step with the rest of it. (The fact that he can veto a law passed by Congress (which veto can only be overcome by a 2/3 vote in both houses), but that he can’t veto a decision of the Supreme Court is also interesting.) “Co-equal” may not be the correct word, but it does seem as if the power invested in all three branches of government is quite substantial.
I do believe that–when things are working properly–the work should be done in, and by, the Senate and the House, and laws should be passed and, in the best of all possible worlds, signed by the President. The fact that over the past more than half-a-century all sides have punted, especially on significant matters of social wellbeing and welfare, and have let the courts invent penumbrae and shadings out of constitutional whole cloth to do the work that legislators should have been doing all along is a huge problem.
Interesting to ponder. Thanks again.
I’m not sure I have anything new to add to the discussion. I’m still sorting out my own thoughts on this whole mess. However, it might help to try writing some of this down and sharing it with other Ricochetti: