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As I’m sure you know by now, gentle readers, someone has leaked a draft decision on abortion by the Supreme Court.  Professor Jacobson at Legal Insurrection reports:  

I’ve never seen an actual draft opinion leak from the U.S. Supreme Court. Not even what the vote will be — remember everyone waiting for the 2012 Obamacare decision and then speed reading it?

Obamacare was small potatoes compared to ABORTION. We’ve covered the Mississippi casethat many speculated would result in Roe v. Wade being overturned.

Politico says it got its hands on a draft majority Opinion by Justice Alito overturning Roe v. Wade. When I first heard it, I figured it was just speculation, but Politico has the draft and it sure looks real:

‘The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. ‘Roe was egregiously wrong from the start,’ Alito writes.

‘We hold that Roe and Casey must be overruled,’ he writes in the document, labeled as the ‘Opinion of the Court.’ ‘It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.’

The draft is from February 10, 2022, so who knows how many votes there are for it, maybe it was just Alito’s attempt to bring others on board.

But the leak is the thing. It’s egregious, and clearly meant to give liberal groups almost two months before the term ends at the end of June to pressure the Court much like there was a pressure campaign against Chief Justice Roberts on Obamacare.

D/S/Cs have long argued the Supreme Court must “look like America,” which is why Temporary President Biden nominated a black woman—a “historic first”—to the Court.  Looking like America, however, goes far beyond superficial racial characteristics.  D/S/Cs want the Supreme Court to be a super legislature that will give them, through legal subterfuge, what they cannot get through a legitimate legislative process.  They want not to represent the will of the public, but to run roughshod over it.  This is the currency of D/S/C cries for court packing, cries which have already been renewed.  They must destroy the Court to save it and “democracy,” but more about that later.

Also at legal Insurrection, Mary Chastain reports on an inevitable matter: 

credit: supreme court

SCOTUS Chief Justice John Roberts issued a scathing statement about the leak of Justice Alito’s opinion.

Roberts wrote:

‘To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.

We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.

I have directed the Marshal of the Court to launch an investigation into the source of the leak.’

If the Court’s deliberations cannot be confidential, it truly becomes little more than another leaky, crude legislature, though one of unusual power, usurping the power of the judicial and legislative branches.  It would have been wiser of Roberts not to speak, for the moment, of the great integrity of the Court’s workforce.  Obviously, the necessity of a mole hunt proves it is lacking in integrity.  Whether it is impossible to restore integrity remains an open question.  Americans have decided the DOJ and FBI have none, and Congress polls as well as a festering boil.  It will surely take extraordinary measures, and time, for the Court to regain the public’s trust.

The draft correctly notes Roe has been an incredibly divisive decision.  This is so because it usurped the right of Americans to decide the issue politically, as the Constitution provides.  To be sure, politicians were more than happy to let the Court exceed its constitutional authority.  It took the heat off them, and gave them a half-century of easy, cheap demagoguery.  They could call it holy writ or decry it, knowing they’d never have to vote on it.  But it also damaged the legitimacy of the Court and contributed to the decline of American’s trust in their essential institutions.

Abortion is a topic I’ve studiously avoided, primarily because it has been flogged to death for 49 years.  I last wrote on it in 2019’s Abortion: Socialist Monsters of Virginia when then Governor Ralph Northam, a pediatric neurologist, and a few Virginia legislators, actually advocated post-birth abortion—killing infants after birth.  Most Americans are just sick to death of the political rhetoric doing the flogging.  Also, it’s an issue that is virtually always argued on emotion rather than logic and law.  Since we’re a constitutional republic—for the moment—it must be decided on logic and law.

Unlike what many D/S/Cs are saying–they create their own reality and demand everyone else live in it–if the Court does strike down Roe–the leaked draft is just that, not a signed decision–that does not destroy “Democracy,” quite the opposite.  It returns the issue to the people’s elected representatives.  Most would rather it didn’t.

That said, the emotional argument: “it’s my body; it’s my choice” is at least superficially compelling.  However considering government showed little respect for individual liberty for the last two years of Covid tyranny, forcing Americans to take untested “vaccines” that aren’t vaccines or lose their jobs, forcing Americans to wear masks, destroying businesses, shuttering schools, even arresting people for daring to venture outside, that’s a thin superficiality.  The rational American should recognize real reality: blue state rulers don’t support individual rights and bodily integrity.  It’s said if men bore children, abortion would be a sacrament, and there’s some truth to that.  However, we should keep in mind the very people who currently hold abortion as a sacrament tend not to be religious, refuse to define what a woman is, and many argue men not only menstruate, but give birth, you know: “birthing persons.”  I’m sure they’re willing to extend the unfettered right to abortion to men as well, particularly men pretending to be women, which is big of them, though puzzling, since they’re not sure what women are and refuse to define them. These beliefs tend to water down their arguments for the rights of the “women” they refuse to define.

Emotional too are the arguments that “abortion is murder” and “abortion on demand” exists.  Even when abortion was illegal in various states, it was never, to my knowledge, codified as murder.  No woman, doctor or nurse ever sat on death row.  There is no such thing as “abortion on demand.”  No law forces a doctor to perform an abortion against the dictates of his conscience.  When it came time for my students to write essays of their choice, I forbade any essay primarily relying on emotion.  As Aristotle said, good rhetoric requires ethos-ethics, logos-logic and pathos-emotion.  If they were going to write about abortion—and they could—they would have to do actual research–substantial reading–to substantiate their positions without relying solely on emotional appeals.  Should the Supreme Court do less, particularly when their decisions must rely on the Constitution?

Keep in mind too socialists and communists, the ideological core of the current Democrat Party (thus “D/S/C”), talk a great game about upholding the rights of “the people,” but when it comes time to vindicate the rights of any individual, that individual runs headlong into the governmental brick wall.  Government has no conscience, and this is particularly true of D/S/C government.  They care for “the people” only as far as the people are politically useful.  When they, individually or in groups, have outlived their usefulness, they are ignored, canceled or jailed.  They all but abandoned “women,” refusing to so much as say what one is because to do so, to actually embrace “science,” would render their trans mania the lunacy it is.  Now that Roe may be struck down, nothing is more important, more faux holy, than “a woman’s right to abortion.”  They care no more for individual life in the womb than they do out of the womb.  Thus do black lives matter, unless those black lives are taken by other black lives in Chicago or other urban war zones.  “Abortion rights” matter to them only in their political usefulness, their ability to stir emotion to violence and votes, distracting people from their insanity and willful destruction of America.

But stare decisis!  What about that holy legal doctrine?  Indeed, the Supreme Court should generally adhere to prior decisions, otherwise no one could know from year to year which laws stand on firm constitutional ground.  It is settled law–the rule of law– that allows us to make life decisions, to make investments, to build and prosper.  However, when a law is wrongly decided, when it was not decided based on the Constitution, it should be overturned, and considering Roe is a half century old, this is hardly an example of the Court failing to give due consideration to the doctrine of stare decisis, of making fickle, quickly overturned decisions.

I knew one day the Supreme Court would have a “conservative” majority, and when that day came, they would overturn Roe and Casey.  Not because they are conservative activists, not because they are political operatives, but because they would apply the Constitution to the issue, a Constitution that does not mention abortion, not in the emanations, not in the penumbras, not under the couch cushions and not lurking in the Supreme Court women’s—whatever those might be—bathroom.  Where the Constitution is silent, legislative power belongs to the several states, which have the sole power to decide such matters.  The Constitution is not silent on that.

And here we run into dangerous territory, territory that could, with our contemporary political divisions and hatred—emotion again—easily devolve to secession and/or civil war. Already in Los Angeles, pro-abortion “protestors” attacked the police.  This is particularly odd in California, which will surely codify abortion up to the moment of birth and potentially beyond.  And Senator Elizabeth “Fauxcohontas” Warren has already incited an angry crowd in front of the Supreme Court.  D/S/Cs are swearing they’ll dox and harass Supreme Court justices and their families and relatives in their homes and elsewhere.

As a matter of constitutional law in our representative republic, as a matter of logic, the solution is clear: the issue must be decided by the states.  This is very much a states rights matter.  We may also discover just how much the American public really does support an essentially unrestricted “right” to abortion.  If that truly is the will of the whole of the American public, this should be among the most easily and rapidly passed constitutional amendments in history.  Is Congress free to legislate abortion?  One can make that argument, but the 10th Amendment would seem to stand in the way, and why would any sane person expect the Supreme Court not to strike down a Congressional house of cards no different from Roe?  The Constitution limits the Congress no less than it does the Supreme Court.

As a matter of emotion, however, American constitutionalism must be at the least ignored, and ideally, destroyed in favor of the “democracy” about which D/S/Cs incessantly speak: the “democracy” of the tyranny of the majority.  

In such a democracy—one man, one vote—the tiniest imaginable majority rules and may do with the minority as it pleases.  It may take their property, their liberties, even their lives.  It may legislate, even use armed force, to ensure it never loses the majority.  This is why the Founders gave us a constitutional republic, not a democracy.  A democracy may enshrine abortion as holy, a holiness such people tend not to otherwise recognize because there can be no greater power than the state and the intellectually and morally superior scientific socialists/communists that rule it.

Final Thoughts: The release of an early draft is a damaging. deplorable breach of confidentiality, and one hopes Chief Justice Roberts will ruthlessly ferret out the leaker, and the bar involved will disbar them, which many are presuming to be a leftist law clerk.  But what if the leaker turns out to be one of the justices?  Some are suggesting the “wise Latina,” Justice Sotomayor, reportedly the most fervent political activist on the Court, is the most likely culprit.  If they would not step down voluntarily–who could ever again trust them?– Impeachment is the only apparent remedy, and that’s not going to be possible until the advent of a Republican Senate and President,  perhaps not even then.  They’ve more than earned the title: “The Stupid Party.”

If the leaker is a justice, and they’re not removed from the Court, the public’s trust in the Court will be eroded to Congress/DOJ/FBI levels.  That state of affairs will be grave, for if we cannot rely on the Supreme Court to honestly, lawfully tell us what is Constitutional, of what use is the Constitution? Why is a Supreme Court necessary? There are those who would welcome this state of affairs, which is surely at least partial motivation for the leak.

It would seem a leak a mere two months before a decision would be released in the normal course of business is of small political advantage.  However, D/S/Cs are desperate, and an additional two months of—dare I say it?—misinformation, and demagoguery, might somewhat temper what appears to be a building electoral slaughter in the mid-term elections. It’s also no coincidence this leaks occurs when “2000 Mules,” a documentary that proves election fraud more than sufficient to overturn Biden’s victory was released.  The documentary relies on only a single vector of fraud.  D/S/Cs are surely delighted to have an issue they can flog to distract from inflation, the border, 2020 election fraud, foreign affairs disasters, third world levels of crime, and an increasingly senile president.  BLM and Antifa will surely join militant pro-abortion “protestors” to maintain their political usefulness, and we can count on blue jurisdictions not to restrain or prosecute any violence and law breaking in support of abortion.  On the other hand, those Americans for who abortion is a defining political calculation will not change their opinions, and those for whom it is not are unlikely to suddenly become single-issue activists.

No kidding.

Still, the resurgence of this issue as a dividing factor, at this point in time, can only widen the political/cultural divide, further weaken us on the world stage, and in so doing, further weaken western civilization and embolden and empower the forces of socialist/communist/Islamist barbarism. Let us pray law professor Jonathan Turley is wrong, though I fear he is not:

Unless we all embrace American Constitutionalism—the rule of law–unless we are content to decide the issue in the several state legislatures, or through a constitutional amendment, our future looks dimmer still.

UPDATE, 05-04-22, 2130 MT:

President Biden is also invoking the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

But he surely doesn’t want “the people” voting on such things.  Why, they might vote the wrong way!  The Ninth Amendment arguably speaks to unalienable, natural rights, among which there is not a right to abortion.