Why the Surprise?
The news broke overnight. The online publication Politico published an exclusive, what it believed to be a draft opinion in Dobbs v. Jackson Women’s Health Organization, written by Supreme Court Justice Samuel Alito which, speaking for the majority, overturns the seminal 1973 abortion decision Roe v. Wade. The text says, “We hold that Roe and Casey must be overruled,” referring also to a subsequent 1992 decision, Planned Parenthood v. Casey, “Roe was egregiously wrong from the start.”
In pledging to investigate the leak, Chief Justice John Roberts confirmed it is the authentic first draft. It is standard procedure for a vote on a case to be taken after oral argument, and if there is a clear majority, the chief justice assigns the writing of an initial draft opinion if he is voting with the majority, or the assignment is made by the senior associate justice in the majority if the chief is not.
Politico additionally reports that five conservative justices, Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Amy Comey Barrett voted to overturn Roe. Three liberal justices, Sonia Sotomayor, Elena Kagan, and Stephen Breyer voted to uphold Roe. That would leave the chief, John Roberts, undecided. But the decision is not.
The reaction this morning was curious to say the least. Some conservatives have been doing celebratory dances. And why not, this is the realization of a decades long goal. Since the day Roe was decided, the right has been crusading to overturn it. And led by Senate Republican leader Mitch McConnell, they have stuffed enough judges on the Supreme Court and the court below to achieve their goal.
It is a bold political position to take, considering that opinion polls place support for Roe to be running about 60 percent. But they, as well as the conservative justices, apparently believe the public can be damned.
Another part of the right wing, having apparently caught the brass ring they have been seeking all these years, doesn’t seem to know what to do with it. Again, perhaps because they know 60% of the country is against them, they are, instead of discussing how wonderful it will be for woman to be subject to the control of their state legislatures when it comes to matters of health, are instead focusing on the leak of the draft opinion! Who could possibly have leaked the document, and to what end?
Who gives a damn? Only the jerks on the Fox channel and their roster of talking heads.
There should be no surprise. I predicted this vote from the day the religious zealot Amy Comey Barret’s nomination was rammed through the Senate by hypocrite McConnell in the fading minutes of the Trump administration.
But McConnell, Trump and the Federalist Society had help. It is macabre to bet on the health and longevity of Supreme Court Justices, but the reality of the lifetime terms the framers of the Constitution thought wise has led to just that. Poor Stephen Breyer seems to be in excellent health. But he is leaving the Court at the end of this term because, at the age of 83, you never know.
Justice Ruth Bader Ginsberg was in terrible health, but she refused to resign. She died at age 87 with just four months left in Trump’s term, allowing McConnell and Trump to fill their third Supreme Court seat and swing the Court to a solid conservative majority. With that she did a tremendous disservice to the progressive, pro-women movement she fought her lifetime to advance.
The recording and transcript of oral argument in the Dobbs case have been posted on the Supreme Court’s website. You can find a detailed review of the case and the argument at Amy Howe’s website and at SCOTUSblog.
Thirty years ago, the Supreme Court in Planned Parenthood v. Casey reaffirmed the constitutional right to abortion that the court first recognized in Roe v. Wade. Only one justice who participated in Casey is still on the court. In his dissent in Casey , Clarence Thomas wrote that “Roe was wrongly decided, and that it can and should be overruled.” Thomas, whose blatant conflicts of interest should have disqualified him from sitting on the Court years ago, may be about to get just what he has always wanted.
If the leaked opinion holds, the Court will not only uphold the Mississippi law that bans almost all abortions after the 15th week of pregnancy. It will totally abolish the right to abortion at the Federal level and perhaps the privacy right that was a key component of Roe and Casey. That means a lot of other case law, resting on the right to privacy, may fall too.
Arguing for the state of Mississippi, Solicitor General Scott Stewart told the justices that Roe and Casey “haunt our country,” have “poisoned the law,” and have “choked off compromise.” “Abortion is a hard issue,” he said, and it is a question that should be left up to the people to decide. By that he means the Gerry rigged beneficiaries of Republican drawn state legislature maps where the lawmakers pick their constituents rather than the other way around.
Thomas and Justices Samuel Alito and Brett Kavanaugh appeared inclined to agree with Stewart and overrule Roe and Casey outright. Kavanaugh said that the Constitution does not directly address abortion and that the issue should instead be left to the democratic process. The court, he suggested, should remain “scrupulously neutral on the question of abortion — neither pro-choice nor pro-life.”
Kavanaugh did not mention cases where the conservative majority had been anything but neutral when considering issues not directly addressed by the Constitution. Citizens United v. Federal Election Commission, which declared that corporations are people and are entitled to the same rights as people. Shelby County v. Holder, where the Court held that the 14th Amendment notwithstanding, the power of Congress to enforce the right to vote is subject to the Court’s own statistical analysis as to the current state of affairs. And then there’s Marbury v. Madison, the first case a law school student studies in Constitutional Law. Here the Supreme Court found it had the power to strike down a law properly passed by Congress and signed by the President. I’m still looking for that text in the Constitution.
The court’s three liberal justices – Stephen Breyer, Sonia Sotomayor, and Elena Kagan, who can be expected to write blistering dissents to the leaked opinion, emphasized the importance of stare decisis, the principle that courts should adhere to prior precedent except under limited and extraordinary conditions. They stressed that overruling Roe and Casey would undermine the court’s legitimacy by creating the sense that the meaning of the Constitution hinges on the court’s membership at any moment in time. Sotomayor made the point most explicitly, noting that sponsors of the Mississippi ban had drafted the bill in response to changes in the Supreme Court’s membership.
“Will this institution survive the stench that this creates in the public perception – that the Constitution and its reading are just political acts?” Sotomayor asked. “I don’t see how it is possible.”
Of course, the Court will survive the stench. But it may in the future come of regret the decision it appears ready to make.
The bigger question is what the political impact will be.
We heard today from Maine Senator Susan Collins, who fancies herself a moderate Republican willing to work across the aisle. She has a long history of acting as if she is weighing the qualifications of the right-wing nut jobs the Federalist Society sends over as judicial nominees. But she always votes for them anyway.
Collins issued a statement that the draft opinion overturning Roe v. Wade published by Politico was “completely inconsistent” with what Justice Neil Gorsuch and Justice Brett Kavanaugh “said in their hearings and in our meetings in my office.” You mean they LIED to get your vote?
Gotcha! Once a fool, always a fool. It’s a shame Maine likes sending fools to Washington.
Updated 5pm May 3 to reflect Roberts authentication of the document.