Late on Monday evening, May 2, Politico broke a world-shattering story: it posted an exclusive leak of a purported majority opinion in Dobbs v. Mississippi (2022), the case considering whether or not Roe v. Wade (1973), which created out of whole cloth a right to abortion, ought to be overruled.
That majority opinion was written by Justice Samuel Alito; it rejected in totality both Roe and the entire chain of cases following therefrom, including Planned Parenthood v. Casey (1992). The draft decision states:
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…This is what the Constitution and the rule of law demand.
The draft opinion, which is almost certainly authentic – it reads like Justice Alito, and utterly dismantles the legal non-reasoning of Roe and Casey – would amount to a reversion of all abortion law to the state level, where it originally resided. As the decision concludes, “Abortion presents a profound moral question. 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.”
Who Leaked The Decision?
But there is another issue, here, too: who leaked the draft decision?
This is not an ancillary issue – it’s absolutely primary. It’s primary for two reasons.
First, the draft decision is just that: a draft decision. No one has presumably voted for it yet. Drafts change over time; they are subject to feedback from other members of the majority.
The attempt to leverage public pressure against the justices is an attempt to strangle the Alito majority opinion in the crib, to generate fractures on the Court. Were the final Court decision to depart widely from Alito’s draft now, it would be crystal clear that public pressure played the main role. And that is the reason the draft was leaked. The Supreme Court, which supposedly is above petty politics, will now be subjected to a tsunami of threats from a snarling left-wing enraged by the prospect of restrictions on killing in the womb.
Second, the leak of the draft decision demonstrates the absolute disdain that the legal Left holds for the rule of law. As SCOTUSblog puts it: “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.”
Whomever leaked this – and the smart bet is on some social activist in Justice Sonia Sotomayor’s office – should immediately be prosecuted. Instead, watch for the media to treat the leaker as either an afterthought or as a hero. After all, the Left treats leaks of IRS documents as fine, so long as they target the right people; the leak of unverified smut about the sitting president in the Steele Dossier was treated as both newsworthy and courageous by the press.
The Impact Of The Draft Majority
If the Supreme Court majority does indeed endorse the Alito draft decision, it would completely revolutionize politics in the United States, which has been polarized around the abortion issue since Roe and its subsequent line of cases.
Those cases froze the law in place based on nothing more than specious social activism by Left-wing lawyers wearing black robes; those cases also federalized what had been a state issue, polarizing Americans further on the issue.
Now California and Alabama would regulate abortion by their own lights; the killing of millions of pre-born children would cease. The big sort, already underway in the United States, would accelerate. Federalism would once again be the order of the day on the most contentious social issue in modern American history.
Furthermore, the Supreme Court would go a long way toward re-establishing the credibility it has lost over time. The Supreme Court was never meant to be a super-legislature on behalf of liberal interests. It was meant to be a separate branch of government, interpreting the law as written. Striking down Roe would be a return to the days when the judicial branch was actually a judicial branch.
And that would be a good thing. As Alito’s draft opinion notes:
Our sole authority is to exercise ‘judgment’ – which is to say, the authority to judge what the law means and how it should apply to the case at hand….The Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on….We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.
If Americans truly wish for a return to an era of politics in which we could live with one another, federalism and separation of powers is the answer to that wish. A Supreme Court majority approving Alito’s opinion would be a massive step in that direction.