A Few Brief Reflections on the Leak

 By Eric Segall

The Supreme Court has confirmed that the draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey is authentic but, like all drafts, might change before it is final. Below are a few observations.

If the final opinion is substantially the same as the draft one, the tone is egregious and full of hubris. Reasonable people can disagree about whether the right to abortion should be protected by the Supreme Court. But the dismissive rhetoric by Justice Samuel Alito of the reasoning in both Roe and Casey is unnecessary and hateful. There are ways to write an opinion overturning those landmark cases that are sensitive to both sides. The draft is definitely not such an opinion and, if the tone remains, will further incense the left and increase polarization on this difficult issue. The opinion reads more like a Scalia dissent or an inflammatory argument of a media pundit than a Supreme Court opinion dealing with the most difficult of topics.

By referring to “unborn human beings” and using similar rhetoric, the Court may well be laying the groundwork for future courts to strike down abortion protections in blue states. That result would be a calamity beyond imagination.

The draft opinion's discussion of the history of abortion law in America does not accurately reflect our country's real struggles with this issue. Abortions before quickening were not illegal in America as a general matter before the mid-19th century. So much for serious originalism (no surprise).

As Mike wrote today in a Verdict column, this draft opinion is likely just the beginning of major changes in constitutional doctrine. He said the following:

The Alito draft... distinguish[es] the abortion right from the rights recognized in the cases on which Roe and Casey rely. Crucially, Roe and Casey do not rely on Lawrence or Obergefell, as both of those rulings post-date Roe and Casey. The not-so-subtle implication is that the Court stands prepared to overrule Lawrence and Obergefell.

What this means, and what I have been saying for a while, is that the Court's striking down of state same-sex marriage bans in Obergefell, and federal bans in Windsor, may well be overturned by the Court. Chief Justice Roberts ended his dissent in Obergefell by saying: 

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

I have always thought Roberts wrote the last two sentences that way so he would feel justified in reversing Obergefell some day. I fear for America's gay and lesbians as that case may be coming sooner rather than later, either by the Supreme Court, or ambitious Trump appointees to the lower federal bench.

Assuming the draft opinion becomes the law of the land, one does not have to be a hardcore legal realist like myself to understand and appreciate its major implications for the role of stare decisis at the Supreme Court. Throughout the 1980's and up to the Casey decision, the federal government expressly asked the Court to overrule Roe altogether. In numerous decisions the Court ducked the issue and then in Casey announced that it was not going to reverse Roe despite those efforts expressly on the basis of stare decisis. It was that reasoning that led many to label Casey a "super-precedent." The draft opinion throws all that away with language more appropriate to a political campaign than a judicial opinion. But if the Court can reverse a "precedent on precedent" in one of the most important cases in this country's history, is any other precedent really meaningful? I think not.

Others will write and comment on the leak itself. I will only say that if it turns out the leak was from another Justice, unlikely but possible, the Supreme Court might never be the same.

Finally, we are here today solely because Mitch McConnell blocked President Obama from appointing anyone in 2016, which led to the confirmation of Justice Gorsuch, and then the former Senate Majority Leader rushed through the nomination of Justice Barrett at the end of Trump's term. Without those two appointments, Roe and Casey would not be in danger of being overruled. That chain of events is excellent fodder for political scientists and legal realists. But what I want to say is that, assuming the draft opinion becomes law, the Constitution had nothing to do with it.