Ethics Alarms posted briefly on the stunning leak of what appears to be a draft of a majority opinion striking down Roe v. Wade and the related Casey decision. [The link to the draft is in that article.] The position here is that any analysis based on the draft itself is premature and irresponsible, since the document is 1) a draft 2) not even necessarily the latest draft, and 3) the opinion as well as the support for it on the Court could change materially before the actual opinion is released.
The only ethics issue immediately clear is that regarding the leak itself, and, by extension, the leaker. Leaks always constitute a unethical breaches of trust; only in the rare cases where they reveal actual criminal activity can they be justified. For a lawyer to leak any information related to a professional obligation or representation is grounds for disbarment, and permanent infamy within the profession. This leak cannot be defended, and pundits, politicians or activists who praise the leaker reveal their own ethics bankruptcy. Keep a watch out for the leak apologists. Then relegate them to your “Untrustworthy” file.
Now the focus shifts to the reactions to the draft, and it is fair to say they constitute a freak-out. Prime among them is the hypocritical and hysterical joint statement by Sen. Schumer and Speaker Pelosi. Imagine: these are leaders of the party that has accused Donald Trump of undermining core American institutions.
The statement is breathtakingly dishonest. None of the members of the Court ever stated that they would not vote to overrule Roe. They said it was the law of the land, which is true, and stated their support for the principle of stare decisus. That did not preclude their voting to reverse Roe later based on a case that hadn’t been briefed or argued yet. I have read enough of the draft to know that Justice Alito clearly explains that stare decisus has always had exceptions (but I knew that) where a wrongfully decided Constitutional case had to be reversed, writing.
“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right….On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”
It should be very easy for Republicans and anyone else to explain the demise of Roe to the public. It was, as Alito says, a bad decision from the beginning, and it was time for the rights of the unborn to be considered, and not just the imaginary right of mothers to have their children snuffed out.
I’m going to spend most of my time devoted to this episode reading the draft, but here are links to various news reports and commentary: ABC News, The Daily Beast, HuffPost, CNN, New York Times, CBS News, Reuters, Washington Examiner, Associated Press, Fox News, NPR, Townhall, Slate, The Guardian, CNSNews, Al Jazeera, Outside the Beltway, Washington Post, De Civitate, Insider, Bloomberg, NewsOne, USA Today, A Lawyer Writes, emptywheel, pjmedia.com, The Nation, Breitbart, Los Angeles Times, The Daily Signal, Vox, Washington Times, The Comity Channel, Deadline, KLAS, The Daily Caller, Men Yell at Me, PennLive, The Hill, The Moderate Voice, littlegreenfootballs.com, NBC New York, Ninja Smith & Friends, WCMH-TV, HotAir, Variety, Deseret News, BuzzFeed News, NBC News, RedState, Mississippi Free Press, Mediaite, Things Worth Thinking About, thot pudding, homeculture, National Review, Big League Politics, WCTX-TV, Twitchy, Talking Points Memo, SCOTUSblog, CNBC, Jill Filipovic, Lawyers, Guns & Money, The Daily Wire, Maxwell’s Newsletter, A Propensity …, Gem State, Louder With Crowder, PharmaHeretic’s Newsletter, First We Think, Vanity Fair, New York Post, Law & Crime, Raw Story, The 19th, The Texas Tribune, Dana Loesch’s Chapter …, Power Line, The Racket News, New York Magazine, Fortune, Hennessy’s View, Trash Chair Thoughts, VICE, UPI, The Gateway Pundit, GC News, Instapundit, Watch Night News, Rolling Stone, Sacramento Bee, The Even Place, Let’s Get Politigal, WPRI-TV, Daily Insurrection, Mother Jones, Super-Probably Relevant …, Mercury News, The Right News, The Western Journal, TheBlaze, Althouse, Unfogged, Ace of Spades HQ, Teresa L’s Newsletter, Boing Boing, CBS Denver, IJR and Progress Report
- Naturally, pro-abortion activists are protesting at the Supreme Court. Once again, I point out that the Court is not a political institution, and protests are, or should be, futile, both before a SCOTUS decision is reached on a case and after. This protest is somewhere in the middle, and it is fair to surmise that triggering it was the goal of the leaker. Who is scum.
- Right wing media is already pointing the finger at Justice Sotomayor’s staff, which is supposedly the most radically progressive on the Court. This is unfair. Right now there is no evidence of who the leaker is.
- Justice Roberts has a metaphorical exam final on his leadership looming. He has to find the leaker and find a way to repair broken trust among the Justices. If he allows the leak to affect the final decision in any way, the Court will be permanently wounded.
- Jonathan Turley on Twitter last night: “Dobbs was always the blockbuster decision of the term. This leak with cause lasting damage to the Court, which has long relied on the integrity of members and clerks to preserve institutional secrecy and integrity….The most likely motivation is obviously to pressure the Court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing. …This draft is from February and the majority can shift on such opinions. However, the act of leaking such a draft opinion ranks as an original sin for judicial ethics.”
- Ann Althouse calls the overturning of Roe “a calamity”—twice! Most of her commenters do not agree. “Making it legal to protect innocent human life is no calamity,” writes one. Second!
- Democrat attacks on the Court based on the draft have already begun, and they will only become more shrill and threatening as the mid-terms approach. The party is desperate, so this will be seen as the new lifeboat.
- Left Wing wacko Cenk Uygur set a high bar for hysterical nonsense, declaring, “There are 5 religious zealots on the Supreme Court!’ That’s funny: I am not religious at all, and I would vote to reverse Roe. Dobbs has nothing to do with religion.
- Watch MSNBC for ten minutes if you can stand it. One talking head after another sounds like the Ghostbusters:
“The Handmaiden’s Tale” is coming true! ARRGH! One wag last night quipped that when the law, facts and ethics aren’t on your side, you rely on Margaret Atwood.
- And everyone’s blaming Donald Trump. They should, and he should get credit for this, if the draft turns out to be reality. He promised that he would try to get Roe reversed, and his three SCOTUS nominations form the bulk of the majority.