Posted on 05/14/2022 8:48:43 AM PDT by billorites
Below is my column in the Hill on the leaking of the draft opinion on abortion from the Supreme Court. While lionizing the leaker, media and political figures have ratcheted up their rhetoric to “burn down the Court” or to pack it with reliable liberal votes. Because these pundits disagree with the constitutional interpretation, they are now suggesting that the entire institution is illegitimate.
Slate’s Dahlia Lithwick wrote “we need to be focusing on the legitimacy of the court itself” while CNN’s chief political analyst Gloria Borger suggested that the Supreme Court Justices were “just a bunch of politicians in robes.” Historian Jon Meacham declared “If you had any reservations about the system’s capacity to deliver justice, they have just been affirmed.” Because the Court has adopted an opposing constitutional interpretation, we are once again deluged from calls ranging from packing the Court to burning it down. In this environment, the White House could not even muster enough courage to denounce protesters descending on the homes of justices to harass them. While the legitimacy of the Court is questioned, the targeting of justices and their families is not.
Here is the column:
Five seemingly perfunctory words from the Supreme Court — “The Court has no comment” — hit like a thunderclap late Monday night. Politico had just posted a draft of a majority opinion overturning Roe v. Wade and its progeny in the blockbuster abortion case of Dobbs v. Jackson Women’s Health Organization.
Most court observers surely must have hoped this was an elaborate hoax, that someone had not shattered every legal and judicial ethical rule by leaking a draft opinion. But there was no denial from the court.
The draft opinion is subject to change and may indeed have already changed in both its analysis and support. Draft majority opinions have a nasty habit of becoming dissents or fracturing into pieces as justices work through the details on a case.
The opinion was written by Associate Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. If unchanged, it would declare that “Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Such a ruling would return the question of reproductive rights to the states. Most would likely continue to support the right, but it would become a matter for each state to resolve through their own democratic process.
The indeterminacy of the draft and uncertainty of the future did not stop instant, dystopian predictions. Rep. Jamie Raskin (D-Md.) immediately declared: “So, this would appear to be an invitation to have, you know, Handmaid’s Tale type anti-feminist regulation and legislation all over the country.”
The final language and meaning of the decision is literally yet to be written. What is clear is that the court itself has been hit with one of the greatest scandals in its history, and certainly the greatest crisis faced by Chief Justice John Roberts in his tenure.
Even in a city that traffics in leaks from every agency and every corner of government, this was an unspeakably unethical act. The Supreme Court deals with transformative cases that drive to the very heart of our political, cultural and religious divisions, yet justices and clerks have maintained a tradition of strict civility and confidentiality on such drafts.
So what changed?
We changed.
We do not know what motivated this leaker other than to unleash a public and political firestorm. The assumption is that the individual wanted to pressure the court to reconsider its purported path, and to push Congress to pass pending legislation to codify Roe. Yet, this act is such an attack on the very foundation of the court that it is dangerous to assume a specific motivation other than disruption.
What is clear is that the court has become a tragic anachronism in our age of rage: an institution that relied on the integrity and ethics of its members and staff at a time when such values are treated as naive. It relied on justices and clerks alike remaining bound to the institution and to each other by a constitutional faith.
But we are living in an age of constitutional atheism, so it is only surprising that it took this long. For years, politicians, pundits and academics have called for reckless political action against the court.
Many Democrats in Congress have pledged to achieve political goals “by any means necessary,” including packing or gutting the court. Democratic leaders have hammered away at the court and its members, demanding that the court adhere to political demands or face institutional disaster. The threats have grown increasingly raw and reckless as politicians sought to outdo each other in their attacks. In the age of rage, restraint is a lethal liability.
The message has been repeated like a drumbeat: The ends justify the means.
Recently, Roberts even went public with a warning over “inappropriate political influence” affecting the court. Yet, the day before this leak, the court itself defied critics who portrayed it as hopelessly and dysfunctionally divided with another unanimous decision. It ruled in a major case on speech that Boston could not discriminate against a religious organization that wanted to hoist a flag outside of its city hall. It spoke with one voice in defense of shared constitutional values.
Given the relentless calls from political leaders, we may have been naive to think that a staff member or clerk would not yield to the same “ends justify the means” rationale. Former Justice Louis Brandeis once warned that “Our government … teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
With our leaders continually expressing utter contempt for the court and its traditions, it is hardly surprising that such traditions lose meaning for some working in the court itself. That did not happen overnight, and it really cannot be dismissed as the act of a single rogue employee. It was a collective effort by those who bred contempt for our legal institutions and values. This is not a crisis of the court. It is a crisis of faith.
So now they are saying tyrants in robes.
I would not call Jon Meacham a “historian.” He’s a left-wing hack.
He used to go to my wife’s church. /spit.
While I would surely like a right to privacy, that ship sailed a long time ago. Obamacare requires medical records be available for “audit” and reimbursement pretty much nullifying HIPA. We are tracked with our phones. Our bank records are looked at. Our political opinions are perused and we can get cancelled. Need I go on. SCOTUS pretty much brought this decision on itself when the Warren court took its Roe decision away from elected officials who are more beholding to the electorate (although the degree of beholdment is certainly arguable). At any rate the democrats have something they can dangle in front of voters for the midterms and boy howdy do they need something.
What has changed is that we are in the throes of a “Bolshevik” Revolution, where the Left abhors Liberalism and wants only a socialist tyranny under their control.
Today’s Leftists (from “moderate” Democrats to Revolutionary Marxist Brigades) have no thoughts or principles, just ever-shifting situational tactics to seize power and steal what others have earned.
Who is the leaker?
Every secretary and clerk should be interrogated.
I don’t think the Court wants to find the leaker.
“I don’t think the Court wants to find the leaker.”
Indeed.
Roberts’ “investigation” is all about delay and coverup.
bump
We keep thinking someone in the court and of course that will pan out...but the ORDER came from a BIG Dem.
Mr. Waterboard is needed at the SCOTUS.
Mr. Waterboard is needed at the SCOTUS.>>>>
You mean Adam Schiff? ( sarc)
And in so seizing of others wealth they seek equality of outcome (which they define), not equality of opportunity as the Constitution guarantees.
Justice Clarence Thomas confirmed on Friday what court watchers feared would happen after the leak of the draft opinion earlier this month.
Speaking at a conference in Dallas, Thomas said the leak, which showed the Court voting to overturn Roe v. Wade, has shattered trust at the court and undermined the institution.
“Look where we are, where that trust or that belief is gone forever,” he said, according to The New York Times. “And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. You can explain it but you can’t undo it.”
The justice looked back fondly to the 1990s and early 2000s, prior to Chief Justice John Roberts arriving, where there was no change in personnel at the court for 11 years. “We actually trusted each other. We may have been a dysfunctional family, but we were a family,” he said. “This is not the court of that era.”
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.