THE END OF ROE v. WADE

           On May 2, a draft opinion by Justice Alito was leaked to the world by the news outlet known as POLITICO.  In the case of Dobbs v. Jackson Women’s Health Organization, the draft would overturn the 49-year-old opinion in Roe v. Wade and return control of abortion law to the individual state governments.  It was subsequently announced that the draft, though not final, was authentic, and that five justices (a majority), appeared ready to release it.  A leak like this, of a draft opinion in a major case, had never happened before in the history of the Supreme Court.

 

          In the two weeks since the leak occurred, there have been pro- and anti-abortion demonstrations, including at the homes of Supreme Court justices, and calls for prosecution of the person who leaked the draft opinion.  The political analysis about the meaning of the end of Roe v. Wade has been largely fevered and hysterical, with little basis in reality.  Contraception will be banned!  Gay kids will not be allowed in public school!  Gay marriage will end!

 

          I offer a few observations about the leak, the end of Roe v. Wade, and the future.

 

          Over the past 200 years or so, there have been a number of idiotic Supreme Court decisions.  Buck v. Bell (forced sterilization of “idiots” is fine, said Oliver Wendell Holmes), Korematsu  (internment of Japanese Americans totally kosher), Kelo,  Dred Scott, Plessy v. Ferguson.  Eventually, they get reversed, or at least ignored (sometimes it’s too embarrassing to admit they were ever written in the first place, so modern justices just pretend they never happened).

 

          Roe v. Wade has always been in this category.  It was not based in the law or the Constitution, and the only “authority” supporting it was some pop sociology that seemed really smart at the time to Justice Harry Blackmun, who wrote it.  Lawyers who read it, if they were honest, knew it would eventually be reversed.  The people who are now “shocked” that the Supreme Court would do this are either completely ignorant of Roe v. Wade and what it says or they are pretending to be shocked for political reasons.  Once it becomes widely understood that overturning Roe will simply return the issue to the voters and their elected representatives, the hysteria will end.

 

          As for the whodunit, the identity of the leaker should not be difficult to discover.  A Justice of the Court would not do this because, while they may have wildly different judicial philosophies and political views, they share a deep respect for the integrity of the Court and its processes.  That means the leaker is almost certainly one of the 36 judicial clerks (4 per justice) that are hired every year from the top ranks of the most-prestigious law schools in the country.

 

          Almost all of these clerks share the views of the justices they serve, at least in terms of upholding and protecting the Court’s procedures, including respect for the secrecy of unpublished draft opinions.  Among the clerks for the conservative justices, there would never be an individual who would care enough about abortion (or any other issue), to compromise the Court’s security.  The leaker therefore can only be a radical leftist from a radical leftwing law school (e.g., Yale).  Only such a person could believe that a political issue like abortion could be worth trashing the Court’s 220-year tradition of trust and collegiality.  Supporting this theory is the fact that the leak itself has been roundly condemned by conservatives but has met with almost no criticism from the Left.  A leak like this also fits with the Left’s recent attempts to undermine the Court and its traditions through court-packing, mounting smear campaigns against conservative justices, and the like.  Similarly, the politicized DOJ has shown zero interest in an investigation into the leak. 

 

          When (or if) the leaker is identified, it will be a leftwing clerk who works for Sotomayor, Kagan, Roberts, or Breyer (who does not officially retire until this summer).

 

          The field of suspects here is exceedingly small---two or three at the most.  And since the Supreme Court clerks and justices eat together, drink together, socialize with each other, and work out together, EVERYONE who works in the building knows who the suspects are.  In fact, they probably know who the leaker is, but currently lack the proof they feel is required to name the individual.

 

Copyright2022MichaelKubacki