The scandalous leak of a complete draft of Justice Samuel Alito’s five-judge majority opinion in the landmark Supreme Court case of this term, Dobbs v. Jackson Women’s Health Organization, is an unprecedented event in the history of the Court.
If Alito’s coalition holds, the leaked majority opinion, a first draft dated February whose authenticity has been confirmed by Chief Justice John Roberts, would represent the culmination of half a century of pro- life to reverse the atrocity Roe v. Wade of 1973. Roe, which was the Court’s worst decision since Dred Scott v. Sandford in 1857 because of the cases’ similar fundamental lies about human anthropology and human dignity, should have been struck down in Planned Parenthood v. Casey in 1992.
This was not the case. On the contrary, the pro-lifers were deigned by a relativist judicial plurality, which reflected Casey: “At the heart of freedom is the right to define one’s own conception of existence, of meaning, of the universe and of mystery. of the human being. life.” Now, at last, after an unconscionable 63 million unborn children have been extinguished in the womb since Roe, the Court of Dobbs seems ready to do what it couldn’t. to Casey: declare the moral and legal illiteracy of Roe’s central holding of a constitutional “right” to abortion.
In balance, that is. It is too premature to celebrate; pro-lifers have been burned far too many times before. Plus, votes can still swing even at this late hour, as anyone with a long enough memory to recall the Chief Justice’s flip-flop in the 2012 Obamacare case, NFIB v. Sebelius.
And that brings us to the leaker, whose identity is surprisingly still unknown at the time of this writing.
While we can’t be sure, it’s highly likely that the leak took place in the chambers of one of the Court’s three progressives: outgoing Justice Stephen Breyer, Justice Elena Kagan, and Justice Sonia Sotomayor. The simplest, and in fact most likely, explanation is that a fanatical pro-abortion lawyer in a liberal chamber decided to pursue progressive “hero” status and a shiny book deal, a talking head gig. MSNBC and/or a gender studies professor. roost in a mid-level university. That enraged antifa thugs are sent to the private residences of the two judges in the case, Amy Coney Barrett and Brett Kavanaugh, is not a bug but a feature of this malicious scheme. Indeed, it seems that some vile pro-abortion activists have already publicly released some of the judges’ home addresses.
It is impossible to describe how grotesque this state of affairs is. We are a long way from Antonin Scalia going to the opera and sharing a laugh with his dear friend, Ruth Bader Ginsburg.
The leak appears to be part of a campaign of intimidation. This is a bullying campaign to not only pare Barrett and/or Kavanaugh from the hands of the ever-mercurial Chief Justice, but also to cow the moderates, Sen. Kyrsten Sinema (D-Arizona) and Sen. Joe Manchin (D-West Virginia) in agreeing to Senate Majority Leader Chuck Schumer’s (D-New York) desire to neutralize the senatorial filibuster and ram through a legal boondoggle and/or statutory codification of the Roe’s underlying “right” to abortion.
It’s hooliganism – precisely the kind of mischief that Abraham Lincoln condemned in his 1838 Lyceum speech, when he said: “There is no grievance that can be mob law redress.” And it is thuggish behavior that deserves severe reprimand, general ostracism from polite society, extreme professional punishment, public shaming, and criminal prosecution to the extent possible under the law.
We will probably know the identity of the lessor soon. But until then, the most pressing question facing the Court — not to mention the most pressing question facing unborn children across the country — is whether Alito’s five-judge majority will stand firm in this appalling and iconoclastic attempt to sabotage the independence and legitimacy of the institution.
The answer should be simple: At this point, the judges have no choice but to go full steam ahead – do what needs to be done and cancel Roe and Casey.
For a swing justice to defect now and rule in any way without neatly nullifying Roe and Casey would be handing the backer and his street-brawling allies a massive victory. And it would be a victory the Court would probably never recover from for the rest of its history. If America’s founding-era idea of a “government of laws, not of men” means anything, it means that the judiciary – our most cloistered and “least dangerous” branch of government – does not cannot be subjected to the mob as Lincoln warned in 1838. To defect now would be to permanently encourage leaks of opinion in the future – and even the slight proliferation of such leaks would cripple the Court and impede its normal day-to-day operations. The terrorists should not be negotiated, and the Dobbs judges should not “negotiate” with the reprehensible financial backer.
We are in uncharted waters at this point. All eyes remain on the Chief Justice, to see if he can find a way — any way — to restore the Court to some semblance of what it has long cherished most, its perceived institutional integrity. This could prove to be an uphill battle; the leak is really so devastating. But there’s an easy way for Chief Justice Roberts to do it: join Justice Alito’s brave coalition and send the bloody precedents of Roe and Casey to the ashes heap of history 6-3 bugler style.
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