Talk about shooting the messenger.
Chief Justice John G. Roberts Jr. has ordered the Supreme Court’s marshal, its internal police, to investigate who leaked to Politico a draft opinion overturning Roe v. Wade and a half-century of abortion rights precedents.
Congress’ Republican leaders likewise decried the leak, not the trashing of a longtime constitutional right. Sen. Mitch McConnell suggested criminal charges might be in order for the whistleblower, er, leaker.
Roberts in his statement Tuesday said the leak was a “betrayal of the confidences of the Court … intended to undermine the integrity of our operations.”
The court’s integrity has been undermined, all right, but not by the leaker.
Blame should go to the five Republican-appointed conservative justices — Samuel A. Alito Jr., the opinion’s author; Clarence Thomas; and Donald Trump’s three appointees, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — who dissembled their way through their Senate confirmation hearings. As nominees they each dismissed, under oath, the idea that they would overturn Roe and other rulings upholding that 1973 decision.
Yet safely on the bench, unelected and life-tenured, they reportedly are seizing power to do just that, fulfilling the decades-old dream of anti-abortion activists and a central plank of the Republican Party platform.
The five justices have embarked on a crusade of judicial activism against a raft of precedents, not just on abortion, now that conservatives have a 6-3 conservative majority, including Roberts, who has been trying to preserve the court’s image as a nonpartisan institution. His lone effort to keep the court from straying too far from public opinion has been blown apart.
Six in 10 Americans say abortion should be legal in all or most cases, that women should make the life-altering decision whether to have a child. One in 4 women have had abortions, most of them long before the fetus is viable.
It stinks, this ideological radicalization of the court. As Sonia Sotomayor, one of the court’s three liberals, fumed during oral arguments in December in the pending case concerning Mississippi’s law banning abortion after 15-weeks pregnancy, Dobbs v. Jackson Women’s Health: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
Alaska Sen. Lisa Murkowski, a rare Republican who supports abortion rights, said the draft opinion “rocks my confidence in the court right now.”
Even Sen. Susan Collins, Republican of Maine, has gone beyond expressing her usual “concern.” Her vote was decisive in putting Kavanaugh on the bench after he’d assured her, she said, that he believed Roe was “settled law.” On Tuesday, she accused him and Gorsuch of misleading her and other senators during their confirmation process.
“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said.
Alito’s 98-page draft is dated Feb. 10. Draft opinions are typically circulated and redrafted to reflect other justices’ edits and views. But there is nothing to suggest that a more polished version won’t come to the same conclusion, representing the unshakeable anti-abortion views of the conservatives. Why should we have to wait to know the final decision until the end of the court’s term in late June, when the justices unload their most controversial opinions and disperse for the summer?
After all, the court’s direction has been clear since the Trump justices arrived. Collins was perhaps the only person persuaded by Kavanaugh or Gorsuch in their misrepresentations about respecting precedents on abortion rights. After Kavanaugh became the court’s fifth conservative in late 2018, red-state legislatures rushed to pass plainly unconstitutional abortion bans, expressly to invite the newly friendly Supreme Court to overturn Roe.
Senate confirmation hearings long ago became charades. Nominees have often dodged questions about how they’d decide cases, since Robert Bork’s candid testimony confirming his extreme conservatism got him rejected in a bipartisan Senate vote in 1987.
Yet the current five anti-abortion justices were particularly artful dodgers when it came to senators’ questions about Roe. Once confirmed, their opposition was quickly apparent.
Thomas testified in 1991 that he’d hardly thought about the landmark ruling, yet months later dissented on an abortion rights decision and called for striking down Roe. Alito, in 2006, told senators repeatedly that he respected Roe as the court’s precedent, but became its foremost foe on the court.
Nominee Gorsuch said of Roe in 2017, “That’s the law of the land. I accept the law of the land, senator, yes.” Kavanaugh suggested a constitutional right to abortion had an especially strong claim to respect because it had “been affirmed many times,” with “precedent on precedent.” Barrett said Roe was no “super precedent,” given some ongoing public opposition, yet quickly added, “That doesn’t mean that Roe should be overruled.”
Now it will be.
Forget the leak. The opinion is what matters to tens of millions of American women who will lose their constitutionally protected right to decide whether they will give birth.
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