“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.’
Justice Samuel Alito, in his tour de force majority opinion draft declaring that Roe v. Wade is no more.
The next sentence: “We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”
That unequivocal statement by Alito makes it very clear that the Supreme Court majority, whether it be five or, if Roberts doesn’t chicken out, six, fully understands that the pro-abortion forces will go ballistic when and if Roe is reversed. This means that the leak isn’t going to put any more pressure on the Justices than they expected.
Law professor Josh Blackmon [not “Jon,” as I mistyped originally], a libertarian, read the opinion draft and this was his verdict:
Justice Alito meticulously dissects, and forcefully responds to, every conceivable position in favor of retaining Roe and Casey. I could teach an entire law school seminar class on this opinion. It touches on nearly every facet of constitutional law. Moreover, the opinion carefully addresses the concerns of other members of the majority. Alito cites Justice Gorsuch’s book. Alito discusses safe harbor laws, which seemed important to Justice Barrett. Alito repeatedly cites Justice Kavanaugh’s Ramos concurrence, and calls on returning the issue to the democratic process. This is an opinion designed to hold five, as the saying goes….
Justice Kagan’s dissent became much more difficult to write. Predictably, she would warn about how this decision would harm the Court’s institutional legitimacy, yadda yadda yadda. But that bandaid was already ripped off. Everyone knows how this decision will be received because–again–we can watch MSNBC and doomscroll through Twitter. It will be hard for Kagan to even address this issue without talking about the draft opinion that everyone has already seen. Josh Gerstein is the elephant in the room. Politico’s leak deflated the inevitable Dobbs dissent.
I haven’t finished reading the draft, and I yield to Blackmon in all matters of legal scholarship, but his reaction has certainly been mine so far. I am not an Alito fan, but this opinion appears to be as air-tight as any I have read. (IT makes Justice Blackmun’s Roe opinion look like a 1L’s student paper.) How many of the vocal critics we are hearing spit nails have actually read the opinion? Not many, I’d wager.
One wry note: while jumping between Fox News, CNN and MSNBC, I caught Sean Hannity saying that the draft wasn’t as “eloquent” as most important SCOTUS opinions, so he speculated that it was written by a “law clerk.” Hannity’s a moron. I’ve read a lot of Alito opinions. He’s not eloquent; he’s direct, no nonsense, and clear. And no Justice is going to send around a draft of such an important opinion to colleagues that isn’t substantially his own work, and the best he can offer.
Ethics Alarms 
I sat down this morning for some light reading… I don’t know if I properly understand all of this, but I still find it fascinating.
I suppose my first question, for any of the lawyerly commentariat, comes from words 22-25: “Circulated, February 10, 2022_______” combined with the first two words not stamped onto the draft: “1st Draft”. These words obviously aren’t part of the actual decision, but I find them interesting. The first draft of a decision was apparently made back in February, and in May we read it as part of a leak? Is that normal?
If the court is delving into issues concerning constitutional rights, shouldn’t we expect the court to make their ruling public in a more timely manner? Is there no sense of urgency? February 10 was literally three months ago and if the draft is to be believed, they’d already voted. When *was* the ruling supposed to come down?
Yes, it’s normal. Remember, the concurring opinions and dissents follow from the majority opinion, and in a case like this, the dissents are crucial. I wouldn’t be surprised if it took a couple months to craft a deft dissent, and then if the majority draft changes materially, that would dictate revisions in the concurring opinions and the dissents.
And heaven forfend if the Court is fractured like it was in Casey, when the majority opinion was plurality opinion and nobody agreed with anyone.
Psst – Josh Blackman.
I had a college classmate named “Jon Blackmon.” Thanks.
“One rye note…” Supposed to be “Wry” I assume.
I have all these caraway seeds here…yes, “wry.”
I knew someone would rice to the occasion and bale him oat.
It is a cornstitutional issue, after all.
Your image is coming through a little grainy… 😀
Honk! Honk! Wocka! Wocka!
Michael Wacha, nicknamed “Wacha Wacha!” during the 2013 World Series, pitches for the Red Sox tonight…
Miscegenation presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting miscegenation.
Contraception presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting contraception.
Segregation presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting segregation.
1. Loving v. Virginia was based on the 14th Amendment, which prevented racial discrimination by the states. No ethical question was involved, and morality is trumped by law.
2. Contraception was a pure privacy case, pitting the pursuit of happiness, an unalienable right, against a government’s religion-based prohibition of what goes on in the bedroom. A privacy slam dunk.
3. Segregation was effectively killed by Brown, which declared that it violated Equal Protection, even before the Civil Rights Acts. Again, the language of the Constitution made the legal question a slam dunk.
Gay marriage presents the same. The right to choose one’s clientele represents the same. Be very careful where you take this. None of those issues are before the Court in this case, so don’t assume that the striking down of a poorly written decision from 1973 means other unrelated ussues are in danger. There is no reason the left should be able to always count on support from the court. .
You can do better, Zoe. Those examples were too easily batted away. Read Roe, critically, and you will see the opinion is on very shaky ground, and the trimester analysis is very simplistic, especially for such a huge political, legal, moral, and ethical issue.
jvb
I have read the leaked draft document. It is well written in light of past Court decisions, history, and tradition. This is not what the media is exploding it to be. On the way to work, I heard media commentators assert that this will lead to the rejection of gay marriage, the illegalization of birth control, and the reversal of the anti-miscegenation laws. It does none of that, in fact, it does not ban abortion. Rather, it clearly states that the legalities surrounding this issue are a matter to be decided by the citizens of the various states through the legislative process. Roe v. Wade and Roe v. Casey has long been deemed to be primary examples of judicial overreach. If the actual decision coincides with this draft then perhaps the blurred line between legislation and judiciary will be restored to clarity and the separation of constitutional powers will be resstored.