Leaking Alito’s draft overturning Roe v. Wade
Letters from an American May 4, 2022, Prof. Heather Cox Richardson
Overturning Roe v. Wade
The uproar over the leaked draft of the Supreme Court decision overturning Roe v. Wade continues. You can tell just how furious the reaction has been by the fact that establishment Republicans are desperately trying to turn the public conversation to the question of who leaked the document. They are baselessly blaming the opposition to the decision—a Newsmax host blamed Judge Ketanji Brown Jackson, who hasn’t even taken her seat yet—for the leak, although observers point out that the leak seems more likely to have come from a hard-core right-wing antiabortion activist, since it will make it very hard for any of those justices currently in the majority to soften their stance.
The draft decision takes a sweepingly broad position against Roe v. Wade, declaring that the Fourteenth Amendment cannot protect the right to abortion because such a right is not “deeply rooted in this Nation’s history and tradition.” This opens the door to similar attacks on constitutional rights previously established by the Supreme Court: the right to use birth control, marry regardless of race and gender lines, and engage in sexual intimacy between consenting adults.
Republican lawmakers are downplaying the reach of the apparent decision, avoiding the question of whether gay rights are next on the chopping block. Bryan Metzger of Business Insider asked “nearly a dozen” Republican senators whether they think the draft decision overturning Roe v. Wade threatens the 2015 Obergefell v. Hodges decision recognizing the right to same-sex marriage, and whether they supported overturning the Obergefell decision. Metzger wrote: “None gave a clear yes or no answer, and several outright declined to comment.” A year ago, seventy percent of Americans supported gay marriage.
The popularity of civil rights might not matter much: law professors Melissa Murray and Leah Litman noted in the Washington Post that “[p]erhaps the most stunning feature of the opinion is that its indignant tone and aggressive reasoning make clear how empowered this conservative majority believes itself to be.”
Indeed, right-wing commentators are emboldened by the apparent success of their drive to take away the constitutional right to abortion. The Committee on Administration of Criminal Justice in the Louisiana legislature today reported favorably on a fetal personhood bill that protects “human life, created in the image of God…equally…from fertilization to natural death,” meaning that abortion is homicide and prosecutors can charge patients with murder.
Right-wing commentators today called for the court to end recognition of the right to gay marriage, and Texas governor Greg Abbott said that Texas might challenge the 1982 Plyler v. Doe decision, in which the Supreme Court ruled that the state could not withhold state funds to educate undocumented immigrant children from local school districts. “I think we will resurrect that case and challenge this issue again,” Abbott told a talk show host, “because the expenses are extraordinary and the times are different than when Plyler versus Doe was issued many decades ago.”
The draft decision has been a clarifying moment for the country. Washington Post columnist Jennifer Rubin told journalists to stop referring to the convulsions in the country today as “culture wars,” as if they were “a battle between two sides over hemlines or movie ratings.” Instead, she wrote, “This is religious tyranny…in which the right seeks to break through all restraints on government power in an effort to establish a society that aligns with a minority view of America as a White, Christian country.”
When reporters asked him about the draft, President Joe Biden said: “This MAGA crowd is really the most extreme political organization that’s existed in American history.”
Today documents from the Department of Justice revealed that on the evening of January 6th, after the rioters had left the Capitol, Stewart Rhodes, the leader of the right-wing Oath Keepers militia group, begged an individual who was in contact with then-president Trump to authorize his and similar groups to stop the transfer of power with force. The group had quick reaction force (QRF) teams, firearms, and combat gear stashed outside the city to use if called upon.
The individual refused to put Rhodes into direct contact with Trump, but the person appears to have been within the president’s inner circle, bringing the investigation closer to Trump. That night, court documents recorded, “Rhodes continued to discuss the need to prepare for a larger fight against the government akin to the American Revolutionary War.” (There seem to be an awful lot of references to 1776 around January 6, don’t there?)
Yet another leaked tape from House minority leader Kevin McCarthy (R-CA), in which he said that “what the president did is atrocious and totally wrong,” showed that immediately after the insurrection, even Republicans realized that Trump had gone too far, and their hope was simply to move him offstage and get people to focus on moving forward. The party quickly snapped back to his side, though, when it became clear that his base wouldn’t abandon him.
”One of the most stunning and sad things in my view that has happened since January 6 has been the realization that the vast majority of…my party, when the chips were down and the time of testing came, they didn’t do the right thing,” Representative Liz Cheney (R-WY), one of the two Republicans to sit on the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, said today.
The events of January 6 did not prompt many leading supporters to break from the Republican Party, but this attempt to erase our rights and establish a state religion might spark a political realignment.
This moment seems to echo the days after the 1857 Dred Scott v Sandford decision took away voters’ ability to stop the spread of human enslavement. Like the draft decision we have seen this week, that decision was clearly political and drew on appallingly bad history to reach a conclusion that gave extraordinary power to the country’s wealthiest men. Horace Greeley, the prominent editor of the New York Daily Tribune, wrote that the Dred Scott decision was “entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room.”
Three months later, the Illinois Republican Party nominated Abraham Lincoln for senator. With his acceptance speech, he began the process of reclaiming equality as the central principle of the United States by giving his famous House Divided speech in which he warned that there was a plan afoot to spread enslavement across the entire country.
In the present, not only are the streets full of protesters, but also the three Republican governors in New England—Charlie Baker (MA), Chris Sununu (NH), and Phil Scott (VT)-—have all said they will protect abortion rights in their states. Levi Strauss & Company, the clothing manufacturer, today called on business leaders to protect the health and well-being of their employees, defending the reproductive rights that have enabled women to participate more fully in the economy in the past 50 years.
The world has changed since the Supreme Court decided Roe v. Wade in 1973. Levi Strauss noted that today, 58% of its workforce is female. And as Rebecca Solnit pointed out in The Guardian, the various groups now under attack form a broad coalition. “It doesn’t really matter if they’re coming for you, because they’re coming for us,” she wrote. And “[u]s these days means pretty much everyone who’s not a straight white Christian man with rightwing politics.”
Justice Samuel Alito, the author of the draft opinion, has canceled a public appearance tomorrow. And tonight, according to Washington, D.C., journalist Lindsay Watts, security officials have begun to install non-scalable fencing around the Supreme Court.
“May 4, 2022 – by Heather Cox Richardson (substack.com)“
I am of the belief that the right-wing members of the SCOTUS (no, I will not pretend these Justices are non-partisan) leaked the draft decision with a specific goal in mind. The leak will allow the right wing in the GQP to see the willingness of the SCOTUS and how the SCOTUS could allow the dismantling of other court decisions such as gay-marriage and other civil rights laws. The final decision will be presented with those unpalatable references removed but the message has been sent that the SCOTUS will support the removal of rights of those demonized by the religious right.
I am which you on the first two sentences.
We should save this comment thread till such time that the Red states do try to ban same-sex marriage and launch further assaults on the Civil Rights Act.
If I am wrong then great, I would love to be.
It will be here and I will remember.
I suspect you’re right about the source of the leaked document. I suspect the purpose is as a brush-back pitch for Roberts, is trying to recruit one of the other right-wing extremists to his slightly less extreme position of not completely overturning Roe.
Was just thinking about you. Both of you are correct. It also smacks of what Ginni might do. Thomas tells her everything. I could see her getting anxious.
Seems like a win-win for the GOP hard-right. Maybe.
Particularly if ‘most’ believe progressives did the leaking, which is at least plausible.
But this will really energize the GOP base no matter what even if one of their own is behind it.
The point being to keep the slim majority of states that are GOP-controlled just the way they are.
There might be a concern among the Right, however, that what the Supremes have done will turn a few of those Red states ‘Purple’ or ‘Blue-ish’.
I’m starting a new campaign. Women traveling to red states should send all their menstrual products to Alito to verify that their menses is not from abortion and so they can safely travel to Republican strongholds. Every women must avoid Louisiana as apparently spontaneous abortion will be a crime.
That would embarrass him. “Can he take it?” A woman said that concerning another topic.
I have never been very good at politics, But I am sorry to see “the Left” turn this into a war against “white Christians.” In the first place those people are not Christians: they teach the opposite of what Christ tried to teach. In the second place we need to keep in mind that the current Republican assult against our rights is an assault against ALL of us. We keep making it easier for them by attacking the people they have fooled. Just makes the “fooled” close ranks and hate us all the more.
On the other hand it may be that we the people are too stupid to realize that and need to feel that the Right is only attacking whatever our specific identity group holds dear. So maybe we just have to hope that our particular alliance of hate groups is bigger than theirs. I was about to say “smarter” because they don’t have to be bigger to win if they are smarter than us.
But, just a clue for you all: They (the R leadership) don’t give a damn about abortion or gay sex or religion, they are just using those (the R followership) peoples primitive emotions to make them (the followers) help them (the leaders) take over the country which they will turn into a totalitarian police state… because that is one of the forms of government that some people love.
Frankly, the idea that some republican leaked the Alito opinion strikes me as far fetched.
In any case ‘oo leaked what is not important it’s just a distraction to give us something to argue about imagining we are making a difference.
The fact that Assange is in jail and “we” have done nothing about it should tell you whether we deserve the rights we are losing. [for those who don’t know, Assange is in jail for leaking documents our rulers found embarassing…including leaders on the Left.]
Agreed, but I am not worried yet. Fifty years ago then I was worried that the Left legislating from the judicial bench might cost us Social Security from the backlash. But now everything is different and the Right seems posed to make exactly the same mistakes that cost the Left their own ability to govern. In the near term perhaps the motivated youth vote will offset the traditional advantage of opposition parties in US mid-term elections. If Biden gets the congressional majorities that he needs in November then I will not worry at all about who leaked.
But yeah, I have heard it said that organizing liberals is like herding cats, but that is wrong. I have much smarter cats than that.
I have had cats smarter than the whole Supreme Court. One ven taught himself to herd dogs.
Awesome – thanks.
No he can’t and the moment should be seized. It’s our only option now. These sorts of men pretty much only have sex around the menses so as to avoid pregnancy which is hugely unsuccessful. Pretty much sure that Alito, given his anger is on the downside of satisfaction.
Here, a quote from an old post on Brooksley Born; “The messenger wore a skirt,” says Marna Tucker, a Washington lawyer and a longtime friend of Born. “Could Alan Greenspan take that?” I wish the women would corner Repubs. People really need to get angry over this hijacking.
It’s early, but so far, no evidence for significant change in November. Maybe that will happen when the SCOTUS actually hands down the decision.
Don’t know who leaked it but if I assume that the majority has formed around an opinion very much like this one, if I were in that majority, I would be pounding the table to issue it pronto. They know what happens to unissued decisions if a justice happens to not survive until it is issued, and they know that lots of other people – possibly very unstable people – know it also. They have reportedly received death threats and their homes were doxxed. Barrett has 7 kids. They know what happened to the Republican baseball team. Yeah, doubting that a conservative court official leaked this.
Who was Matthew Hale, the 17th-century jurist Alito invokes in his draft overturning Roe?
Boston Globe – May 6
I read such too. Alito relies on a 17th century nut-job to make his argument. After we (ancestor) denounced the witch trials, “Mark” had to flee Salem for safety reasons.
One might suppose that such figures as Supreme Court Justices who seem to revere the views of their predecessors (including those on English courts) would pay closer attention to the opinions of modern history scholars, but alas…
But perhaps they do, in that they base the ‘conservative’ views they espouse for modern times are tied to ‘fringe’ opinions from 400 years ago. If only we could return to Those Thrilling Dayes of Yesteryeare.
“From out of the west with the speed of light and a hearty ‘Hi-yo, Silver!'”
(including those on English courts, from the Oliver Cromwell era.)
As previously noted, English history from that period in the 17th century has had much influence on America.
Americans can prove Alito wrong at the ballot box
Boston Globe – May 5
(The GOP was long disgusted with the Supreme Court that turned left with the appointment of Earl Warren as Chief Justice by Eisenhower. Warren was ‘supposed to be’ a conservative justice. It took many years to get that turned around, starting with William Rehnquist appointed by Dick Nixon. The GOP is now at last relieved, it seems.)
A new conservative majority poised to overturn Roe could spell the end of the Roberts court
Boston Globe – May 7
A new conservative majority poised to overturn Roe could spell the end of the Roberts court
Boston Globe – May 7
Two years ago, Chief Justice John Roberts joined the majority of the Supreme Court to strike down a restrictive Louisiana abortion law, not because he disagreed with the law, but because he felt the precedent of Roe v. Wade — and perhaps the reputation of the court — demanded it.
If his draft opinion unceremoniously overturning the nearly 50-year-old right to an abortion is any indication, Justice Samuel Alito is concerned with neither. And he — not Roberts — writes for the majority now, with Justice Amy Coney Barrett having replaced the late Ruth Bader Ginsburg.
The draft, while not final, offers a glimpse into an emboldened group of justices to the right of Roberts who no longer need their deeply conservative, but more cautious and institutionalist, chief to join them to hand down sweeping rulings that reshape the American legal landscape. The result could be a host of dramatic changes on cases dealing with guns, religion, states’ power over elections, and more.
“If something similar to this is the opinion of the court, that’s sort of like… somebody’s throwing away the steering wheel on a game of chicken, right? It’s a signal that the gloves have come off and there are no restraints now,” said Michael C. Dorf, a professor of constitutional law at Cornell Law School. “These five justices feel extremely empowered. And we’re likely to see that across a range of other cases.”
A decision overturning Roe would mark the culmination of decades of work by the anti-abortion movement, which has focused on changing the composition of the court itself to overturn the law. Alito, Justice Clarence Thomas, and all three of former president Trump’s nominees — Barrett, Brett Kavanaugh, and Neil Gorsuch — voted to overturn the 1973 abortion ruling, according to Politico, which published the leaked draft on Monday.
But the stunning move would also mark a rejection of the more incrementalist style of Roberts, who has long warned of the dangers the court faces if it loses public trust by appearing to act ideologically. A dramatic decision lacking his name in the majority would be a sign he is losing his grip on a court that, according to tradition, is referred to by his name as chief justice. The Roe decision drew a 7-to-2 vote, with the conservative chief justice, Warren Burger, prominently in that majority. …
Roberts, who was appointed by George W. Bush in 2005, is remembered by civil rights attorney Paul Smith as being “the most aggressive, always-ready-to-argue kind of conservative” when they clerked together in the early 1980s, and has been a reliably conservative vote in some of the court’s most controversial cases. He joined the slim majority allowing unlimited corporate spending in elections in the 2010 Citizens United case, struck down a key part of the Voting Rights Act in 2013, and sided with the conservative minority against gay marriage in 2015.
But his votes upholding the Affordable Care Act drew the ire of conservatives, including Trump, who portrayed him as a traitor to the cause.
Roberts’ own words, however, showed that he had concerns as chief justice that transcended his conservative legal grounding, honed over stints in the Reagan and first Bush administrations. He said in a 2007 interview that justices had a special responsibility to put aside their ideological agendas for the good of the reputation of the court during a turbulent political time.
“Politics are closely divided,” Roberts said then. “The same with the Congress. There ought to be some sense of some stability, if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.” …