Liberals love to bleat on these days about how Republicans have been breaching “democratic norms,” but late today one of the most sacrosanct norms of our political order was breached: Someone leaked a draft Supreme Court opinion striking down Roe v. Wade and Planned Parenthood v. Casey in the pending case of Dobbs v. Jackson Women’s Health Association.
The opinion, drafted by Justice Samuel Alito, is 98 pages long, and I’m going to want to read through it carefully before offering conclusions or analysis. But some of the language in the opinion on a first skim seems promising, such as “Roe was egregiously wrong from the start.” Heh: The left has been saying for years now that a liberal Court could overturn precedents they hate such as Citizens United under the heading that it was “wrong the day it was decided.” More:
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.
A complete draft opinion has never leaked from the Supreme Court before, and it has long been understood that anyone (especially a law clerk) who leaked an opinion would be kissing their legal career goodbye. This is why I think the leak probably came from one of the Justices. And my money is on Sonia Sotomayor, who is by far the most politicized Justice on the Court, though she will soon have company when Ketanji Brown-Jackson joins the Court.
A leak of the opinion is surely a desperate attempt to stir up a public firestorm (so the left hopes) that will cause a Justice to switch his or her vote at the last minute. (It also provides desperate Democrats with something to distract from inflation, crime, education, Biden’s senility, etc.) This suggests the Court’s vote was 5 – 4, likely with Roberts once again defecting. The media isn’t even trying to disguise the purpose of this leak. Politico “reports”:
Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months. . .
No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.
I am certain that Breyer and Kagan are NOT happy about this leak, whatever their strong feelings about the issue. Could a Justice be impeached for leaking an opinion? It would be grounds for disbarment for any lawyer. Stay tuned. . .
UPDATE: An angry crowd of lefties (is there any other kind?) is already gathering on the steps of the Supreme Court to protest.
UPDATE 2—The mole hunt is under way.
Knowing what lefty Yale law students are like these days. . .