Much has been said about last week’s unprecedented leak of a draft opinion by Supreme Court Justice Samuel Alito in the Dobbs v. Jackson Women’s Health Organization case, proposing to overturn the court’s historic Roe v. Wade decision. According to the draft, four other justices joined in Alito’s conclusion, three disagreed and the position of the chief justice is unclear. But the leaked draft was just that — a draft. And as experienced court watchers have observed, positions, arguments and votes of justices often change as opinions are reviewed, critiqued, refined and finalized. So, while early indications are that Roe v. Wade will be overturned (much as predicted following oral argument several months ago), we will have to await the final Dobbs opinion to see what is actually decided, by whom and why.
But the draft nature of the opinion leak hasn’t stopped advocates on both sides of the divisive abortion debate from reacting — including protests by those opposed to the predicted result and rallies in support by those who embrace it, plans for changes on the state level in reaction to or because of the expected decision, and get out the vote and other efforts by both parties in anticipation of the abortion issue driving the upcoming midterm elections.
None of this is new. The abortion debate has been among the most contentious and divisive issues in our country. Americans are torn — with a majority consistently saying they do not want Roe overturned and a majority also favoring some level of restriction on abortion. That seems to indicate that Roe, with all its flaws, was a good compromise.
If Roe is overturned there will be inconsistency with each state pursuing its own abortion policies. Some 65 million women could lose access to an abortion because 12 states have “trigger laws” that will automatically ban or highly restrict abortions if Roe is overturned. A Democratic-sponsored federal abortion-rights law stands little chance of passing. In fact, rights activists fear an eventual Republican-passed law to prohibit abortion altogether, or even the possible use of the Alito logic of what the Constitution doesn’t say in order to strike down a line of civil rights decisions regarding contraception, same-sex marriage and interracial marriage. But all of this must await the final Dobbs decision.
For now, we worry that the unprecedented leak of the draft opinion is another indication that American institutions are becoming casualties of the corrosive and destructive culture wars that our country is fighting. Until last week, it was largely accepted that the internal workings of the U.S. Supreme Court were sacrosanct. Say what you will about the motivations of the justices or the politicians who promoted them, everyone seemed to agree that what went on in the often-messy process of deciding cases needed to remain confidential in order to encourage the full airing of ideas and approaches among the justices. But that is no more. All it took was one explosive, hot-button issue leak to shatter that view and to drag the inner workings of the court into the ongoing debate over the court’s politicization.
We worry about the partisan fury that ignores tradition and makes everything fair game, as the betrayal of the Supreme Court takes another step in our nation’s unfortunate race to the bottom. This madness must stop.
I agree with WJW that the contentious abortion debate “must await the final Dobbs decision.” Meanwhile, as part of that debate we should bear in mind the “laboratories of democracy” concept enunciated by Justice Louis Brandeis in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) — a concept that explains how the Constitution (in the Tenth Amendment) provides a measure of state autonomy where the states may act as social laboratories to develop and test laws and policies on matters not specifically provided for in the Constitution and better left to the individual states for resolution rather than prematurely receiving broad-brush treatment at the federal level.
The present WJW Editorial is right on the mark in suggesting that the recent unprecedented leak of Justice Samuel Alito’s draft opinion is a ” betrayal” of Supreme Court protocol and “is another step in our nation’s unfortunate race to the bottom.”
Although the source of the leak has yet to be determined, it is clear that that person (or persons) are part of the radical element in this country that seeks to eviscerate the Constitution of the United States, promote ahistorical narratives, and destroy the vital institutions that uphold our exceptional democratic system of government “of the people, by the people, for the people” that was “conceived in Liberty, and dedicated to the proposition that all men are created equal.”