The biggest news of the year is not that the Supreme Court is considering overturning a 49-year-old precedent. Anyone who follows politics knows that it was the number one goal of the current Court’s majority. They didn’t need arguments before them to make that decision. No, the big news is the breaking of a precedent that has lasted 223 years: the “right to privacy” of Supreme Court deliberations.
Ordinarily, the Chief Justice would write the decision. However, while Chief Justice John Roberts is known to have anti-abortion sentiments, he also feels reverence for Court precedent. Therefore, he passed on the writing of the opinion in the Mississippi abortion law case to the senior Justice, Clarence Thomas. However, Thomas is known as the “silent judge,” because he almost never speaks when the Court is in session, and apparently didn’t want to be seen as the leader in this case. That’s how the job fell to Samuel Alito. All of that is according to precedent. But not the leaking of Alito’s draft ruling.
While speaking at the Antonin Scalia Law School at George Mason University this past Thursday, Alito basically dodged a question about the leak.
“This is a subject I told myself I wasn’t going to talk about today regarding, you know — given all the circumstances,” Alito said. . . “The court right now, we had our conference this morning, we’re doing our work. We’re taking new cases, we’re headed toward the end of the term, which is always a frenetic time as we get our opinions out. . .So that’s where we are.”
However, there had been false rumors that Alito had gone into hiding, according to Business Insider.
A baseless rumor that Justice Samuel Alito was moved to an “undisclosed location” appears to trace back to a guest on Fox News. . . The rumor appears to have started with Georgetown University lecturer Ilya Shapiro, who started making the claim last week. . . On a DC radio show, Shapiro said he “heard a rumor that Justice Alito and his family have been taken to an undisclosed location,” according to The Washington Post. He then repeated the claim to Fox News. . . Shapiro on Monday told Politico followed up with he was unsure if the rumor is true.”
Justice Thomas was more forthcoming, in Politico.
“I do think that what happened at the court is tremendously bad,” Thomas declared during a discussion at a conference for Black conservatives in Dallas. “I wonder how long we’re going to have these institutions at the rate we’re undermining them and then I wonder when they’re gone or destabilized what we will have as a country and I don’t think the prospects are good if we continue to lose them.”
However, while espousing the conservative concept that institutions should be respected, Thomas also disrespected the concept of legal precedent.
Thomas did not comment on the substance of the 67-page draft opinion written by his conservative colleague, Justice Samuel Alito, but at one point Thomas embraced one of the arguments in it over stare decisis: the principle that respect for precedent justifies upholding prior court opinions even if they’re erroneous. Alito’s opinion argues that stare decisis should not be an obstacle to overturning the 49-year-old precedent guaranteeing a federal constitutional right to abortion.
The Court quickly admitted that the leaked document was legitimate.
The statement on behalf of the court confirmed the document’s authenticity, saying, “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.”
Chief Justice John Roberts defended the Justices and their assistants.
In a separate statement, but released together with the one from the court, Roberts called the leak a “singular and egregious breach” of trust — but defended the court’s workforce and integrity, saying this will not undermine its operation.
From Congress, Senate Minority Leader Mitch McConnell blamed liberals for the leak.
“The liberals want to rip the blindfold off of Lady Justice,” McConnell said in floor remarks, notably not mentioning the word “abortion” but focusing entirely on the leak. “They want to override impartiality with intimidation they want to elevate mob rule over the rule of law.”
Meanwhile, at least two GOP senators have spoken against overturning Roe.
Sen. Susan Collins, R-Maine, said the opinion as written would be “completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” while Sen. Lisa Murkowski, R-Alaska, fellow abortion rights moderate, called the leak “absolutely reprehensible. . .If it goes in the direction that this leaked copy has indicated, I will just tell you that it, it, it rocks my confidence in the court right now.”
McConnell’s argument is that liberals wanted the public to react to the proposed decision before it became set in stone. However, it’s more likely to force the majority to stand firm, not wanting to seem vulnerable to public opinion.
While some language in Justice Samuel Alito’s leaked draft opinion could have presumably changed in the three months since it was circulated on Feb. 10, the draft being leaked now makes it harder for a justice to change his or her vote, according to some court experts.
That argument is that a conservative likely leaked the document, as a way to assure that none of the majority would heed Roberts’ appeal that they could narrowly uphold the Mississippi abortion case currently before the court, Dobbs v. Jackson Women’s Health Organization, while leaving Roe intact.
The Dobbs case provides an arbitrary 15-week limit for abortions in that State. Under Roe, the compromise position was that abortions could be allowed until the point of fetal viability, at about 24 weeks.
If the document was intentionally leaked by the conservative majority, it would be an echo of the public response to the impending 2003 war in Iraq. At the end of 2002, Americans were not convinced that we should go to war with Iraq, which had nothing to do with 9/11, and had no “weapons of mass destruction.”
Despite a concerted effort by the Bush administration, more than two-thirds of Americans believe the president has failed to make the case that a war with Iraq is justified, according to a Los Angeles Times poll. . .in the absence of new evidence from U.N. inspectors, 72% of respondents, including 60% of Republicans, said the president has not provided enough evidence to justify starting a war with Iraq.
People were “going to the streets” to protest. To quell the uprising, members of Congress scheduled “town halls” to allow citizens to “blow off steam” inside of school auditoriums and gymnasiums. This writer attended one of these “town halls” by US Rep. Fred Upton, of Michigan. One after another, angry citizens stood up to express their outrage about the coming war—for two hours.
It was a success. The citizens “had their say.” Upton “heard” but did not “listen,” and voted for the war. Several citizens even made a point of thanking Upton for the chance to speak. If it were not for those “town halls,” those same citizens might have marched on Washington, instead of going home to sit in front of their TV.
Nobody knows who the leaker is, but the result will be to have the uproar settle down before the final document is released, regardless of whether the leaker was from the right or the left.
Abortion foes are working for State laws to outlaw abortion, while those who want Abortion to remain legal, are already acting as if it’s settled law—and they are talking about making abortion pills available or traveling to another State. Canada and Mexico have already publicly welcomed women who want an abortion.
It’s a done deal.
