The wave of sturm und drang unleashed by the leak of Justice Samuel Alito's draft opinion overturning Roe v. Wade notwithstanding, the revelation tells us little we did not already know. It has for some time been a foregone conclusion that under this court Roe v. Wade would be overturned either outright or in effect by further erosion of protections it provides. I have thus far plowed through the first thirty pages of the honorable justice's disquisition. Based on that and other accounts I go along with Adam Serwer's summation:
The opinion itself reads like a fancy press release from a particularly loyal member of the GOP Senate caucus. Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification. (Alito's Plan to Repeal Roe)
Alito's contempt for Roe—"egregiously wrong," "exceptionally weak," "erroneous" and "plainly incorrect" reasoning, an "error that cannot be allowed to stand," "relying on two discredited articles by an abortion advocate," describing earlier courts as usurpers "wielding nothing but raw judicial power" (Milbank, Supreme Court's hacks)— focuses the gaze on a presumed decision that will negate half a century of precedent and bear grave implications for the health of women and for the personal liberty of each of us.
Pro forma declarations by Alito that his reasoning applies only to Roe v. Wade are disingenuous or worse. The presumed decision opens the way to erasure of a host of unenumerated rights found objectionable by the furthest reaches of the right, which is to say, what passes today for mainstream Republican thinking. Jennifer Rubin's depiction of the right's effort "to break through all restraints on government power in an effort to establish a society that aligns with a minority view of America as a White, Christian country" and appropriation of "state power to enforce theocratically driven positions" strikes me as a wee bit far-fetched, applicable to some elements of the right but not to all. On the other, much has happened since 2016 that would once have struck me as far-fetched, not least the proposition that an armed mob would occupy the Capitol in the attempt to overturn an election, and that the attempt to overthrow the government would be ongoing almost two and a half years later.
Senate Democrats pledge to respond with a feeble "show" vote (or series of votes) on an abortion bill they know will not pass in desperate hope that putting Republicans on record will redound to Democratic advantage in the upcoming midterm election and in 2024, a "Hail Mary" pass at best, but they do not appear to have much else unless inflation miraculously fades into the aether over the summer.
In the meantime we are treated to yet another farce from the Republican side of the aisle where faux outrage over the leak is meant to divert attention from the substance of Alito's opinion. I write this as one who believes that the expectation of confidentiality in the Supreme Court's deliberations is important and its breach can be justified only in extraordinary circumstances. Revelation of what was already a foregone conclusion a few months before its public announcement does not qualify. This is not a whistleblower issue. The leaker should face consequences.
Mitch McConnell's characterization of the leak as a "toxic spectacle" is the folderol of a professional hack, and George Will's coupling of it with "the Jan. 6 mob [that] temporarily truncated a constitutional process in the Capitol…[and] the previous president’s institutional vandalism" (Alito's argument) is absurd.
The widespread presumption fed by McConnell et al. is that the leak is the nefarious machination of a liberal clerk hoping that justices who make up the moderate faction of the court's far right wing will bend to public pressure and uphold Roe. Ruth Marcus put forward another possibility based on reporting that the Chief Justice might be trying to dissuade Justices Kavanaugh and Barrett from voting to overrule Roe outright. In this speculation, the leak comes from the right hoping to stave off a Kavanaugh or Barrett defection. Marcus argues that this makes more sense than positing a liberal source because
Not much would be gained by leaking the draft of an outcome that has been expected since December’s oral argument in the Mississippi case, which involves a ban on most abortions after 15 weeks. Does anybody really think the reaction would change the conservative justices’ minds? (leaked draft)
The goal of the antiabortion movement is a nationwide ban on abortions. They are salivating over the prospect of a ban, perhaps with exceptions for rape, incest, and the health of the mother, perhaps not, passed by Republican majorities in both Houses of Congress in 2025 and signed into law by a Republican president. No one imagines that Mitch McConnell would allow some nicety like the filibuster to stand in the way. More immediately, a Supreme Court decision this summer overturning Roe will precipitate a wave of state bans,
some with exceptions for rape, incest, and the health of the mother, some without.
It ain't over till it's over, as distinguished legal scholar Lawrence Peter "Yogi" Berra put it.
The decision is not final. Barrett or Kavanaugh could go along with Roberts and join the three justices appointed by Democratic presidents. An outcome further eviscerating the protections offered by Roe would be bad enough but a lesser evil. I do not count on even that.
In Ukraine sixteen-year-old Anna Melnyk does what she can as her country resists the Russian war machine. Each day after school she hops the bus to the train station in Lviv, puts on her green "information" vest, and answers questions: "How to get to Poland? Where is the bomb shelter? What to do next? Anna’s calm demeanor seems to reassure these new arrivals, displaced by war from besieged cities. They turn to her for a sign that everything is going to be all right" (Hannah Allam, Coming of age in a war, one Ukrainian teen finds her 'mission,' The Washington Post, May 3, 2022).
What we face here is a far cry from what confronts Anna Melnyk and Ukrainians coming to her for information. The question presses itself on us nonetheless: What will we do?
References and Related Reading
Read Justice Alito's initial draft abortion opinion which would overturn Roe v. Wade, Politico, May 2, 2022
David French, What Alito Got Right, The Atlantic, May 4, 2022
Josh Gerstein, What falls after Roe? Liberals warn of a privacy rights nightmare, Politico, May 4, 2022
Jeff Greenfield, Why Abortion May Not Stay a ‘State’s Rights’ Issue for Very Long, Politico, May 4, 2022
Glenn Kessler, Fact Checker, A pair of Four-Pinocchio abortion claims (one by Alexandria Ocasio-Cortez, the other courtesy of Rick Scott) The Washington Post, May 6, 2022
Ruth Marcus, The leaked draft Roe opinion is a disaster for the Supreme Court, The Washington Post, May 3, 2022
Dana Milbank, Supreme Court’s hacks reward Republicans’ betrayal of democracy, The Washington Post, May 6, 2022
Jennifer Rubin, Let’s throw out the term 'culture wars.' This is religious tyranny, The Washington Post, May 4, 2022
Adam Serwer, Alito’s Plan to Repeal the 20th Century, The Atlantic, May 3, 2022
George F. Will, Alito’s argument is less a refutation of Roe than a starting over, The Washington Post, May 3, 2022