SCOTUS Leak - Part 2

 There are two distinct issues involved in the SCOTUS leak.  The first is the act of the leak itself.  I addressed that yesterday.   The act of leaking this document, regardless of what was leaked, is a direct attack on the Court itself, a core institution and bastion of our democracy.  The gravity of this act in and of itself should not be diminished.

The second issue relates to the actual leaked document and its substance.  That I will address today.

What was leaked

First, let’s be clear on what the leaked document is.  It is a draft opinion, written by Justice Alito, in the case of Dobbs v. Jackson Women’s Health Org.  The draft is not the final opinion but one intended for the Justices to review as they each decide how they will vote to decide this case.  The opinion indicates that the court may be on the verge of overturning Roe v. Wade.

What does it mean

The actual meaning of this draft opinion, if it were to become the final decision of the Court, is far different from much of the rhetoric being bandied about by the Left and the pro-abortion lobby. 

You may read the draft opinion for yourself here:  LINK TO OPINION 

Essentially this draft opinion explains the shaky base upon which Roe v. Wade has always stood.  Justice Ginsburg, a strong abortion advocate, warned about this when she said that Roe should not have gone beyond striking down the particular statute involved in that case.  She stated, “Suppose the court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force." 

It was this abuse of judicial authority, the unconstitutional removal of states’ rights, that has made Roe both controversial and unconstitutional from the start.  The draft opinion clearly explains the Constitutional basis and the logic behind the necessity of overturning Roe v. Wade.

The draft opinion does not outlaw abortion.  Rather, it returns the decisions about whether and to what extent to restrict or not restrict abortion to the states where these decisions and regulations properly and constitutionally lie.

The draft opinion specifically states that it does not apply to other rights that have been held to exist:  this opinion, if it becomes law, will not end the right to gay marriage, it will not end interracial marriage (yes, that is being asserted by the Left), nor will it affect any other aspects of the culture wars.

What this draft opinion will do, if adopted by the Court as the final opinion, will return abortion regulation to the states.  Some states will likely have very restrictive laws.  Others will have no restrictions whatsoever.  Most will be somewhere in between.  What that means is the less restrictive states will actually allow abortion well beyond that which Roe allowed.

Why now

So the pro-abortion activists are clearly upset that Roe may be overturned.  But why was this draft leaked now?

The draft was written in February.  Why not then? 

If this is to be the final opinion, or whatever the final decision of the Court is, it will be released by the end of the Court’s term in June.  Those unhappy with the decision could just as easily protest then. 

If the intent is to rile up the base before the midterms, that could just as easily be done once the opinion is released – June is still well before the midterms.

Clearly the opinion will serve as a distraction from Biden’s many other crises.  But his crises existed in February and there is no reason to believe they will disappear by June. Indeed,  Biden has needed distractions almost from day one of his presidency, so why now?

As I see it there are really only two clear possible answers, and actually they easily coalesce into one:  an attack on the Court and its rule of law.

First, this may be an attempt to influence the Justices’ final votes in this case.  The thought behind this would be that if the protesting voices are loud enough, perhaps they will sway the Justices away from their duty to decide based upon the law and instead decide upon popular opinion.  Essentially this is an effort to replace the rule of law with rule of the mob.

And this leads right into the second possible reason:  to inflict a hopefully fatal wound upon the Court and with it the rule of law, a basic necessity of our democratic and free society. 

The Court is the protector of our Constitution, our system of Justice, and the rule of law.  While various groups and individuals may be unhappy with aspects of these institutions, while we must all admit that none is perfect and that mistakes are made, they are the core of this country.  Anyone who would attack them either has no understanding of them or of the institution of the Court, or so hates this country that they would destroy its very core. 

So perhaps the individual or individuals or group that attacked the court simply would rather see an America of mob rule than one of law and justice.  Or perhaps they simply had no idea of what they were doing – perhaps their understanding of our democracy is so lacking that they allowed some need for a moment of personal gratification to overcome their rationality or sense of ethics.  I don’t know.  What I do know is that this act has created a breach of trust so deep that the Court may never recover.

Now what

There is a lot of rhetoric, much of it false and misleading, that is circulating as a result of the leak and that is being used by various entities for various purposes.

The pro abortionist lobby will do its best to stir up protests.  They hope these protests will not only change the minds of the Justices, but also encourage states to enact liberal abortion laws that allow abortion up to and even beyond birth.

The Democrats will use the rhetoric to campaign in a year in which their polls show they are losing badly.   They will use it to push for an end to the filibuster as a way to enact broad abortion statutes that deny the states their rights to enact their own laws. 

The Democrats will also use this as a reason to stack the court with enough justices so that the court becomes a political arm and rubber stamp for their policies rather than a protector of the Constitution and of the people whom that Constitution is designed to protect. (Note:  Stacking is not the same as appointing Judicial replacements who hold a particular judicial philosophy.  Stacking is increasing the number justices and then appointing a sufficient percentage of that new number with individuals/activist judges with a particular political point of view so that the Left’s policies will always be affirmed.)

The Republicans may use the Democrats’ reactions to point out what hypocrites the Democrats are.  The Democrats like to tell us how they are fighting to preserve our democracy and its institutions, yet they are calling the leaker a hero and do not seem to understand why anyone would be upset about the leak.  Rather, as they repeatedly tell us, not only does the end justify the means, but one should never let a crisis go to waste.  Hence, their ethics see the leak as perfectly OK and a way for them to fundraise based upon the leaked document.

 We the people should:

1.      Make sure we understand the role of the Court within our government and its 3-branch system;

2.      Understand the Roe v. Wade opinion, the flawed logic on which it is based and what it does and does not allow;

3.      Understand what overturning Roe v. Wade would and would not mean;

4.      Understand that, while uncommon, the Supreme Court properly overturns bad law (for example, the Court overturned Plessy v. Ferguson, the case allowing segregation and establishing the concept of “separate but equal” when it decided Brown v. Board of Education);

5.      Hear the current rhetoric with a critical ear and a critical mind, understanding what is fact and what is false.

Overturning Roe v. Wade, if that is the ultimate decision of the Court, is not the end of the world.  It is not even the end of abortion.  If you have a stand on abortion, be it pro or con, you can work within your state as it crafts its abortion laws. 

What would be the end of our rights and freedoms would be to turn the main protector of those freedoms into just another political body.  Outrage should be directed towards those who are trying to do so.