The old news of the leak of Justice Alito’s draft opinion last May overruling Roe v. Wade has now been swamped by the new news of the Supreme Court’s final opinion a month later.
That final opinion, almost identical to Alito’s draft and joined by five of the nine Justices, held that Roe was wrong. As a matter of fact and law, the Constitution never mentions, alludes to, or implies a Constitutional right to abortion.
(Notice my use of the word “abortion” to identify abortion. Because “abortion” has a bad connotation, advocates of it seek to rebrand or euphemize the procedure with wooly obfuscation like “a woman’s right to choose” or “reproductive rights.” But “a woman’s right to choose” is ambiguous unless you think that abortion is the only thing women have the right to make a choice about. And “reproductive rights” is a deliberate misnomer, much like “Planned Parenthood.” This is not about the right to reproduce or become a parent, but the right not to.)
The Supreme Court’s decision returns the abortion question to the state legislatures elected by the people or the state constitutions enacted and amended by the people. The states are already going in different directions on the issue, as our system of Federalism permits and even intends.
This is a bad outcome only if you think that abortion is a moral wrong which, according to at least five unelected lawyers in black robes appointed for life, is barred sub silentio by the Constitution or you think abortion is a moral right that is granted sub silentio by that same Constitution.
I’m in neither camp. I’m instead in the camp that the Constitution says what it says and doesn’t say what it doesn’t say. I think this Supreme Court decision is not a bad outcome at all. Let the people and their elected legislatures puzzle out this philosophical, moral and religious – but not legal or Constitutional – issue. That’s what the Founders intended for such issues.
But there’s another question still unresolved. Who leaked Justice Alito’s draft opinion?
That question is important. This unprecedented leak shook the Court to its marble foundations. In the context of the Supreme Court, the leak was far worse than Watergate in the context of the presidency or the Pentagon Papers in the context of the military. This breach of confidence undermined the Justices’ deliberations, reputations, and authority.
Chief Justice John Roberts recognized the cataclysmic nature of the leak. In a rare press release, he called the leak “absolutely appalling” and said he was turning the matter over to law enforcement.
That was a couple of months ago. Since then, crickets.
Several theories have been advanced regarding the identity of the leaker. The obvious one is that it was a law clerk for one of the three liberal dissenting Justices who hoped the leak would generate such an outcry that the majority Justices would back down. Indeed, there are several law clerks with a history of abortion advocacy.
But I doubt this theory that it was a law clerk. Ivy League law school graduates are a mercantile bunch. I doubt they would jeopardize a hard-earned and lucrative career for this political Hail Mary.
Another theory is that the leaker was one of the dissenting Justices who naively thought the same – that the leak would pressure at least one of the majority Justices to change his or her mind.
Yet another theory is from the reverse-head-fake-counter-flop school. It was one of the five Justices who joined the Court’s opinion overruling Roe. The theory is that one of the other four were wavering. The leaker strategized that the leak would lock that wavering Justice into his or her tentative position, because changing his or her vote after the leak would reflect badly on the size of his or her cojones.
No Supreme Court Justice wants to be shown to have little cojones. These people could make ten-fold their government salary in private practice. They instead chose black robes, an audience that stands when they enter the room, and a raised dais from which they look down upon and interrupt those rich lawyers who chose the money route, all because it says they have big cojones. Without the cojones perk, the job offers no rewards.
But I think this theory is too clever by half. I can’t imagine a Justice in the majority thinking, “Gee, so-and-so Justice is wavering. How can I lock that Justice in to the preliminary vote on the case? I know, I’ll leak the draft opinion, and so he/she won’t be able to change his/her mind without looking like a cojones-lacking Justice.”
And so, I think the second theory is correct. One of the three dissenting Justices leaked the opinion in the hope that the ensuing protests would pressure at least one in the majority to change his or her mind. That obviously didn’t work, and if anything it may have had the opposite effect.
I suspect that the status of the law enforcement investigation is as follows. Law enforcement has interviewed the thirty-some clerks and reviewed their phone calls and emails. They’ve been cleared, else we’d have heard otherwise by now.
That leaves the Justices.
I suspect that Roberts stopped the investigation before law enforcement interviewed the Justices and reviewed their emails and phone records. Because he doesn’t want to deal with what he knows the investigators would find.
Roberts has always been obsessed with the status and prestige of the Court, which is not a bad thing for a Chief Justice to be obsessed about. Indeed, he refused to join the majority opinion in this case – instead writing a separate opinion saying he wanted to uphold the Mississippi law limiting abortion to 15 weeks without outright overruling Roe – because he wanted to conserve the power of the Court by issuing a small ruling and not at big one.
That approach is defensible. Overbroad decisions have the effect of binding future litigants who have not had their day in court, based on hypothetical and un-litigated facts. To avoid that, courts usually issue rulings no bigger than necessary to decide the case in front of them.
I thought the Court would approach this case that way. Roe was bad law, but it was not necessary to outright overrule it in order to uphold the Mississippi law.
Now, again trying to conserve the Court’s status and prestige, Roberts probably believes that implicating a sitting Supreme Court Justice in a criminal leak would be even more destructive to the Court than the leak itself.
He may be right. But still, as Chief Justice, isn’t part of his job description to be the chief of justice?
One last morsel for thought: If the leaker was indeed a Justice, the liberal reporter at Politico who broke the story and published the draft opinion now has kompromat on her.
Glenn Beaton practiced law in the federal courts, including the Supreme Court.