Politico’s leak of the Supreme Court’s preliminary draft opinion, written by Associate Justice Samuel Alito, presents a grave situation for the nation’s highest court. If the Supreme Court backtracks on its supposed decision to overturn Roe v. Wade, it could appear as if the Court was influenced by the political pressure exerted by abortion activists.
As I’ve noted before, preliminary drafts are a common occurrence in the Supreme Court’s daily procedures when fleshing out a final ruling. Justice Alito’s 98 page draft, while possibly being a landmark piece of writing for the legal conservative movement, will nevertheless most likely be fleshed out as the justices continue to deliberate on the final ruling, even if Roe v. Wade is overturned.
While we should always respect the final ruling of the Supreme Court’s decision, regardless of the outcome, a decision upholding Roe may have disastrous implications for the Court’s legitimacy. It could potentially put the Court on a collision course with the political interests of zealous pro-abortion activists on the left, directly implicating the Court in a tumultuous political dispute.
The political tension caused by Roe’s potential demise as a nearly 50-year legal precedent has already prompted an extreme political reaction from the left. A pro-abortion group calling itself “Ruth Sent Us,” recently announced that it had located the homes of the six conservative Supreme Court justices. While the Google Doc link has since been removed, supposedly containing the home addresses of the six justices, the announcement next to the document link still remains:
“ANNOUNCING: Walk-by Wednesday, May 11, 2022! At the homes of the six extremist justices, three in Virginia and three in Maryland. If you’d like to join or lead a peaceful protest, let us know.”
Note that the website calls the six conservative justices “extremists,” but attempting to locate and personally confront judges who have presumably made a decision you don’t agree with is far more indicative of extremism than overturning Roe will ever be.
Seeing the left’s political meltdown, as well as an apparent attempt to dox the justices (which, for the most part, has garnered little condemnations from the legacy media), a final decision upholding Roe would be terribly problematic.
It would signal to many in this country, both those on the right and left, that leaking draft opinions to provoke a political reaction can leverage the final decision of the High Court. It would send the message that the nation’s final arbiter of the law can be influenced by political pressure. This would, without a doubt, destroy the Supreme Court’s legitimacy as the nation’s principal legal and non-political institution.
The best thing the Supreme Court can do right now is to simply ignore the agitators and focus on the law, business as usual. As of now, it seems evident that the justices understand this. Just recently, Associate Justice Clarence Thomas commented on the recent opinion leak, saying that institutions shouldn’t be “bullied” into delivering what some see as the preferred outcome.
Supreme Court opinion leaks have happened before, but are nevertheless extremely rare. For a tumultuous decision like the one to be made by the Court in Dobbs v. Jackson Women’s Health Organization, it is especially imperative that the Court remain vigilant on the law, and the law only.
Jackson Women’s Health Organization disputes a Mississippi state abortion law that prohibits abortions performed after 15 weeks of pregnancy. Because fetal viability takes place around 22-24 weeks, the 15 weeks creates an “undue burden” on the right to abortion. If the Court rules in favor of the state, it will surely overturn Roe as precedent, leaving the issue of abortion completely at the discretion of the states.