Ethics Observations On The Dobbs SCOTUS Opinion Draft Leak And Reactions To It

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

Further observations:

  • 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.

29 thoughts on “Ethics Observations On The Dobbs SCOTUS Opinion Draft Leak And Reactions To It

  1. I don’t know if this draft is authentic or not so I’m not jumping on any bandwagon to condemn or condone what’s been reported by Politico, especially with the record that Politico has shown. What I am going to say is that I won’t stop saying the following until there is a very noticeable change in the way the political left produces and delivers their anti-conservative propaganda…

    The political left has shown its pattern of propaganda lies within their narratives so many times over the last 6+ years that it’s beyond me why anyone would blindly accept any narrative that the political left and their lapdog media actively push?

    This narrative from the political left is no different than any of their other narratives, it’s presented in a way to instill hate and mistrust of conservatives, don’t trust it – yet!

    • Excellent point Steve. It could easily be a strategy to shore up suburban women’s support that was lost when the AG started investigating parents for challenging school boards.

      • There’s a very good chance of that. However, that said, I don’t think the support they hope for would come from the married mom types. I think they want to motivate the young unmarried women to get out there in droves and save their right to carry on like the Fokken twins on a busy weekend and never suffer consequences.

      • That probably wouldn’t be a good strategy. I’m not sure the Venn diagram of “moms who are upset by ‘woke’ school policies” and “womyn for whom abortion is a primary concern” has a lot of overlap.

    • Agreed. This could be a false flag operation designed to divide and conquer. I put nothing past the Democrats anymore.

  2. As I see it; all the narratives that come out of the political left’s propaganda factories follow a pattern of sorts.

    1. Unverifiable anonymous source, as usual.

    2. Undermines an institution of the United States of America in some way.

    3. Gins up more hate, more mistrust and outright fear of Conservatives.

    4. Justifies all their previous propaganda narratives full of innuendo, attacks and lies.

    5. Sets up Democrats and Progressives to politically benefit from hate, mistrust and fear.

  3. Democrats should lay much of the blame at their own door. They nominated a terrible, self-absorbed, one-foot-away-from-the-prison-system candidate for President in 2016 that ran one of the worst campaigns in my lifetime. How would SCOTUS look today if they hadn’t been so mindless then?

    The Bible speaks of a coming day of judgement, when the guilty will stand before the Judge, completely exposed for who they are and with nowhere to hide. They will be monsters – ugly, uncaring, and without restraint. If this leaked verdict is in fact valid, then when this “judgement day” comes, the Left side of the political spectrum will likely give us a glimpse of That Day.

    Get ready…

  4. One other thing…Pelosi and Schumer are so concerned about SCOTUS justices that “are in no way accountable…”?…those same “in no way accountable” justices upheld Roe years ago, and they were fine with it.

    Anyways…

    In my state, Supreme Court Justices are retained by vote of the people…so, accountability (to some degree) at the state level. I suspect it’s that way in many states. If so, this a potentially a huge win for Democrats, who can work in states to get justices retained that are stronger supporters of abortion and get laws passed that favor their stance.

    Instead of losing their minds, they should see this as an “it’s about time” moment…

    • The Conservative judges are in no way accountable…Are they saying the liberal justices are?

      It’s a ridiculously dishonest statement designed to whip up the furies of their base while undermining the SCOTUS they want to remake in their image.

    • It’s phenomenal. If this ruling actually goes forward as the leaked draft implies (which now, there’s a good chance it won’t, given well practiced democrat intimidation tactics), *the worst thing that will happen* is that abortion is still legal in most states to some degree, will be restricted to some degree in many states, may be banned in a small handful, and then – in another noticeable cluster of states, abortion will be celebrated to a level that would make even the most depraved European blush.

      No – democrats hate the republic and democrats hate federalism and democrats hate constitutional processes. That’s why they are flipping out.

      • Too pessimistic: have some faith. SCOTUS knew this would be a bombshell. What do they care if it’s now or later? I think the leaker was dumb as a brick. He or she threw away their career for nothing.

        • In a sane world, where all parties behaved according to the same rules, I’d agree with this. The leaker just earned themselves access to comfortable opportunities from here on out, given the vast network of deeply entrenched left wing institutions.

        • Alito might not be subject to intimidation himself. However, he and his family were both surveilled during the Edward Snowden situation. He has a wife, two grown children, and presumably grandchildren. He might well change his vote if they were threatened by Clinton-era fixers.

      • If the ruling doesn’t go forward as leaked, then no one is going to believe that the change was due to anything other than political pressure from the left. Trust in the Supreme Court to operate as an independent branch of government will be destroyed for at least a generation. One side of the debate will be happy it’s been undermined, and the other will see it as the destruction of democracy. I’ve already seen people calling this an example of an actual insurrection on Twitter, as compared to J6. Add this to the already undermined trust in our institutions following sketchy elections, calls to pack the Supreme Court, weaponization of alphabet agencies against the people, establishment of a ministry of truth…the list goes on and on and adds up to a recipe for nothing good.

  5. I have read many statements to the effect that “the right to abortion is sacred.” The last time I heard of the killing of children being sacred was when the Canaanites would immolate them on heated metal statues. Sacred indeed. Woe to those who call the sacred profane and the profane sacred.

  6. The internet is going to be so odious for the next month.

    We’ve hashed out the ethics of abortion ad nauseum here, there shouldn’t be anyone unfamiliar with anyone else’s positions unless you’re new, and if you’re new, sorry, but I’m not interested. Search some of the old topics.

    What does interest me is the leak. Off the top: I never want to hear about the destruction of norms and institutions from a lefty ever again. Spare me. Principles aren’t principles if you only hold them when they’re convenient, and nothing, literally nothing, has been more destructive to SCOTUS in American history than the last 12 hours.

    I’m not entirely sure what the leaker could be charged with, not knowing the intricacies of criminal law at that level…. Maybe theft of government documents? Regardless, the person needs to be charged, and if that person was on Sotomayor’s staff, maybe we do need to have an investigation into how much the Justice knew, and if she knew more than nothing, perhaps it’s time to yet again prove Schumer and Pelosi wrong and show how justices are, in fact, accountable by the people by holding the first legitimate impeachment proceeding this side of the millennium.

    Lots of “ifs” and “maybes” in there, but Sotomayor has always been the least of the Justices, even while some positions were vacant, if one of them was going to do this, it would be her.

  7. Leaking a SCOTUS brief is almost as dastardly as a hypothetical situation where a general told a foreign nation he would collude with them if he disagreed with his own commander in chief or a hypothetical situation where a sitting president coordinated with an enemy nation to just wait to attack until after an election.

    Only people who should be run out of the nation at bayonet point act like that.

    • Leaking a SCOTUS brief is almost as dastardly as a hypothetical situation where a general told a foreign nation he would collude with them if he disagreed with his own commander in chief or a hypothetical situation where a sitting president coordinated with an enemy nation to just wait to attack until after an election.

      Such a general should be court-martialed!

  8. 1. The timing of this leak is interesting since many of us are voting in our states primaries in a couple weeks. I heard a commercial for Tina Kotek last night, who is running for Governor in Oregon, make a talking point about protecting abortion regardless of what SCOTUS says. Alrighty then.

    2. The #1 issue here is the leak, not abortion. For all the crying and wringing of hands regarding January 6th, it’s odd that this leak isn’t being considered a threat to our democracy by those same people.

    3. What I really want to know now is how SCOTUS will prevent the next leak.

    4. The wacky left will blame Trump, Republicans, people who think killing babies in utero is wrong, and I bet the acronym TERF will be used by someone at some point. The wacky right will blame Democrats, Biden, Sotomayor (for now), and CRT/queer theory loving grade teachers. All this blame will accomplish nothing.

    5. Politico is obviously not a news source but a source for destruction of confidence in our court systems. What should Politico be held accountable for, if anything at all?

    • 1) Isn’t it the most infuriatingly stupid tack that they are *going* to take. Democrats nation wide are going to pretend like their individual states enshrining abortion in local laws are in brave and risky DEFIANCE of the SCOTUS ruling, when in reality they would be 100% Constitutionally permissible after this SCOTUS ruling.

      2) Brian Stelter and Chris Hayes, among the top-tier intentionally smug commentators, both lambasted people on the right for being overly concerned about “the leak” and not about the impact on women. Chris Hayes characterized the outrage as “performative”.

      3) Conservatives will play by the rules and Progressives will not.

      4) But for a shining brief moment, the nation knows what a woman is…

      5) Well, helicopter rides I heard area always fun.

  9. Biden’s released a statement. That ending rallying the troops for November is pretty much to be expected. I don’t know if the leaked draft is legit or not, but what a well-timed freakout this is.

  10. The leak was, at least in part, designed to “Derek Chauvinize” the court in the same way that Minneapolis jury was affected.

  11. One other observation:

    It’s funny how Schumer / Pelosi use Eisenhower and Lincoln as the “before” examples of the Republican party…both of whom were served long before abortion was any kind of hot-button issue. And, of course, they use President Trump as the “after”…for obvious reasons. Since 1973, the Republican Presidents have been:

    Nixon – mostly pro-life
    Ford – pro-life
    Reagan – pro-life
    Bush 1 – more nebulous, but leaning pro-life
    Bush 2 – pro-life
    Trump – pro-life

    It doesn’t look to me like the “party of Eisenhower and Lincoln” has devolved at all with regards to abortion.

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