In my office at work, I used to have a first-draft legal opinion taped at eye level to a cabinet next to my desk. It was a very complicated question with three major issues to resolve, and it went on for pages. The legal analysis in that first draft was thorough and accurate and, frankly, changed little between that first draft and the issued opinion, although a significant amount of considered-but-excluded material was later added in. But the version of that opinion that was first shared with the client took another week or two. Why? The major difference was that, at the end of the first draft, I had concluded that it would be extremely difficult if not impossible to do what the client was asking. One specific issue appeared nearly insurmountable. But after discussion of all of the permutations of the questions with others and quite a bit more thought and reflection on those questions, the issued opinion outlined a way to do what the client had requested, and with a reasonable likelihood of success. It also laid out in detail a number of possible pitfalls to avoid. And ultimately the client was able to follow that path and achieve its desired result.
I still have that first draft, although now I no longer need to look at it on a regular basis to remind me that, no matter how thorough and accurate one person’s first take of an issue is, there is always more to think about. That’s one of the reasons that I didn’t want to spend too much time looking at the first circulated draft of Dobbs v. Jackson Women’s Health. We should presume that Justice Alito and his law clerks had already been though it multiple times before it was circulated to the rest of the court, but this would be the first time that anyone outside of Justice Alito’s chambers would be seeing it. And it unquestionably would change, perhaps as dramatically as the opinion in my example, but probably not. Instead, it’s reasonable to assume that, at the time that opinion is released, the longtime controversial cases Roe v. Wade (1973) and Casey v. Planned Parenthood (1992) will have reached the end of the line.
Leaks, in the plural
But I’d expected that we wouldn’t know that until the end of June. So did everyone else, with the possible exception of National Review columnist Dan McLaughlin, who wrote an article about the possibility of a leak back in December. Here’s what he wrote five months ago, a day after the oral arguments made it obvious that there were five votes to overturn Roe and Casey:
There is another question, though, that I wonder about: If the Court is doing something as dramatic — and as upsetting to the sorts of people who clerk for the liberal justices — as overturning Roe, will it be able to keep that a secret for seven months? The Court in modern times has had a remarkable record of keeping the justices, the law clerks, and the rest of the Court’s personnel sworn to secrecy about even the most momentous pending cases. Rumors have cracked that more often in recent years, especially in Obamacare cases, but we have never really seen the dam break. It will be quite impressive if it can keep a secret this time — and if it can’t, we may see a pressure campaign on the Court (or worse, violence) unprecedented in modern times.
I read this article at the time and thought that it was just crazy talk . . . as crazy as the idea that an American president would try to orchestrate a coup to stay in office after losing an election. Clearly I’m not keeping abreast of the race to the bottom in American political life.
But how do we know that someone with a leftist orientation leaked this opinion? After all, we’ve seen two major previous opinions change orientation completely due to a flip in May — the Obamacare case (NFIB) in 2012, where Chief Justice Roberts flipped, and the Casey case back in 1992, where Justice Kennedy flipped — and just last year, it appeared that Roberts managed to get Kavanaugh and Barrett to do a late flip (perhaps also in May) in the case Fulton v. City of Philadelphia, because Alito’s concurrence appeared to have been, at one time, a majority opinion that would have overturned the 1990 case Employment Division v. Smith (thus eliminating a majority opinion written by Justice Scalia and joined by all of the court’s conservatives). Thus, the case changed from a 5-4 decision to a 9-0 decision, but on exceedingly narrow grounds. Wouldn’t that imply that a conservative might have been the leaker, to prevent another late flip?
Ah, but that ignores the possibility that there were at least TWO leaks here. On 26 April, the Wall Street Journal ran an editorial entitled “Abortion and the Supreme Court”. The editorial noted that:
The oral argument suggested that five Justices lean toward doing so, but a ferocious lobbying campaign is trying to change their minds. . . . The particular targets are Justices Barrett and Brett Kavanaugh, the two newest Justices.
When I read that piece, I thought it had just relied on the oral arguments to make its arguments, because it was also my takeaway from the oral arguments that, similar to Fulton, Chief Justice Roberts wanted to rule in favor of the Mississippi law without overturning the Roe and Casey precedents, and it would make sense if he tried to persuade the two people who went along with him in Fulton to do so again. But libertarian law professor Josh Blackman, who writes at the Volokh Conspiracy and was the theorist behind the Obamacare lawsuit, came to a different conclusion the day after the story came out:
Roberts "may" be trying to turn "another" (singular) Justice now? What do you say, WSJ? This seems like very, very specific information. Has there been a leak? And which (singular) colleague is Roberts trying to turn? * * * *
[A]t an event last week, someone asked me about Dobbs. I said something to the effect of, "everything is quiet now, and I haven't seen any evidence of leaks." Now we have evidence. If there are other similar pieces in National Review and related outlets, we can have more faith that knowledge has leaked out.
Perhaps I am over-reacting. I've done it before. But the Bostock and NFIB flashbacks are quite strong now. There is still plenty of time between now and the end of June. Indeed, we are somewhat ahead of schedule. The leaks from NFIB began at the end of May.
And then, one week after this WSJ editorial, we had a leak of the entire unrefined first draft opinion in Dobbs, in what was apparently a separate leak to Politico. Blackman wrote that, in his opinion, this second leak was a leaker from the left simply trying to damage the Court as an institution. In Blackman’s words:
Institutional damage was a feature, and not a bug of the leak. Rather, the goal may have been to destroy the Supreme Court as we know it in order to (hopefully) save the nation.
And one very prominent member of the SCOTUS bar agrees with Blackman. Tom Goldstein, a leading advocate before the Court and the publisher of SCOTUSblog (created back in 2002 by the law firm of Goldstein & Howe, now known as Goldstein & Russell, but now operated by a separate nonprofit organization), wrote an article yesterday also citing the WSJ article as the result of a leak:
While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito is drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito did draft that opinion.
Goldstein believes there were two separate leaks to Politico, with the first identifying everyone’s position (the same as the leak to the WSJ) and then the second being the leak of the first draft of the opinion. Based on that, Goldman draws the following conclusions:
Here is what you would conclude is the state of play if you took all the leaks as both accurate and pretty complete (assumptions that, admittedly, are by no means certain). Alito’s opinion probably has been joined by Thomas and Gorsuch. Kavanaugh and Barrett have yet to join – most likely because they are waiting to consider an alternative opinion from the chief justice.
In these circumstances, which ideological side would think it benefits from leaking the opinion? It seems to me, that is the left. I can see conservatives believing that they would gain from leaking the fact that Kavanaugh had originally voted to strike down Roe. They might believe it would tend to lock him into that position. But that was accomplished by leaking that fact to both The Wall Street Journal and Politico.
The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and – with important caveats – substantive due process rights more broadly. And as a first draft – without the benefit of later refinement – it does not yet present the critique of Roe in its most persuasive form.
I have no reason to disagree with two legal experts who are much more closely connected to the Supreme Court bar than I am, especially when their analysis is similar to my own. So, until the true identity of the leaker(s) are revealed, I’m accepting Goldstein’s theory as the baseline going forward.
The high-water mark of the Confederacy
A brief digression: on two separate occasions, the Confederacy managed to mount assaults and wage battles on Union territory. The furthest advance north made by Confederate troops came about on the second occasion, in 1863, and it ended with the battle of Gettysburg. The spot where Confederate troops came the closest to breaking the Union’s lines there is know as the high-water mark of the Confederacy.
Prior to Roe v. Wade, most changes in basic constitutional law were made by Constitutional amendment, and there had been a flurry of four constitutional amendments in the preceding decade: the 23rd Amendment (1961, to treat the District of Columbia like a state for presidential election purposes); the 24th Amendment (1964, to ban poll taxes); the 25th Amendment (1967, to clarify the process of Presidential replacement and succession); and the 26th Amendment (1971, to extend the vote to 18 year olds). Then Roe was wished into law by the Supreme Court in 1973. And how many constitutional amendments have passed since then? One, the 27th Amendment, which was proposed as the second article in the Bill of Rights in 1789 (!!) and finally ratified 203 years later, in 1992.
So what happened to the Equal Rights Amendment? It was sent to the states in 1972, with a ratification deadline of seven years. Guess what happened a year after it was sent to the states? There has only been one more constitutional amendment sent from Congress to the states since then, a 1978 proposed amendment to treat D.C. as if it were a state, which was only approved by 16 states. And yet the D.C. statehood movement is not only not dead, but just last year the House of Representatives moved forward with it and passed a bill agreeing to it . . . without amending the Constitution. How could it do that?
Because the Supreme Court decided that it could legalize abortion nationwide on its own and then did so, that’s how.
A major part of the over-the-top reaction to the overturning of Roe, which will NOT make abortion illegal in the United States, or same-sex marriage, or contraception, or inter-racial marriage, or any of the dozens of other items cited in panicked hysteria, is because Roe v. Wade was the high-water mark of the progressive legal movement of the 1950s-70s. Tearing it down is a symbol that those days have ended and are not coming back for a long time, even if progressives are now focusing on the Kaplow-Shavell model for progress instead of the “brute force” model represented by “Build Back Better” and Roe.
Although Justice Alito’s first draft employs somewhat over-the-top logic that could be used to overturn any number of prior cases, the survival of Employment Division v. Smith last year, which easily could have been overturned in Fulton v. City of Philadelphia, illustrated just how difficult it is to generate a majority to overturn any but the most egregiously erroneous cases.
Josh Blackman, who was quoted above, had the best take on the potential jeopardy to these other cases in an interview with The Dispatch:
Every year for 50 years, there’s been a march on Washington to overrule Roe. There’s no march on Washington to reverse gay marriage. There’s no march on Washington to ban birth control. There’s no march on Washington to reinstitute interracial marriage bans. There’s no appetite for this.
One of former Justice William Brennan’s most famous quotes comes from a story he used to tell his incoming law clerks, which wasn’t revealed until after his death. He would tell his clerks that, with all of the high-minded and lofty ideals floating around in Court discussions, there was one word that was overwhelmingly the most important word at the Supreme Court. And then he’d invite the new clerks to guess that word. They’d be far off base. And what was that word? “Five” — the five votes you need to win a case before the Court. Well, it has to be clear that a precedential case was decided incorrectly before you can get to five. And the longtime outstanding example of such a case was Roe v. Wade. Presuming that, like Lazarus, it doesn’t rise from the dead once again, all I can say is: May It Rest In Peace.
In effect, overturning Roe is the equivalent of tearing down Confederate memorials: those memorials reflect a time when your group was the dominant group, and those memorials represented a way to make sure that everyone else respected those days and your former prominence. Removing them was removing the big neon sign highlighting you, which you had hoped to achieve again.
I think Robert E. Lee was a fantastic general, who actually earned most of the praise he was given after the Civil War. But so was Dwight D. Eisenhower, who won an even more consequential war in WWII. How many statues of Eisenhower have any of us ever seen? There’s one at the Capitol. There’s one at West Point. There are three at the Eisenhower Memorial in D.C. I believe there is one more in D.C. as well. There’s one at his presidential library in Abilene, Kansas. There’s one in a park named for Eisenhower on Long Island. But I don’t believe there’s even one in Gettysburg, a town overflowing with statuary — and also the location of the Eisenhower postwar home and farm, which has now been turned into the Eisenhower National Historic Site. By contrast, you could probably fill Madison Square Garden with all the statues of Lee and his generals in public areas in the South.
Well, Roe has had the same corrupting influence. When Ronald Reagan nominated the brilliant Yale law professor Robert Bork to the Supreme Court, Bork treated the Senate hearing like it was a graduate seminar, being completely open about his views on the law . . . and dismissive to senators who asked what Bork saw as silly or thoughtless partisan questions. And he got rejected, although the Senate had never rejected someone competent and not crooked specifically based on his legal views before. Beginning with the very next nomination, nominees no longer told Congress their actual view of the issues. Instead, their answers became legal jargon. And those people complaining that the Republican nominees said that Roe and Casey were the supreme law of the land miss that that answer was legally correct: Roe and Casey were the supreme law of the land, and lower courts were bound to follow them. But like hundreds of other cases, including Plessy v. Ferguson, the Supreme Court is permitted to overturn the supreme law of the land.
In 1992 the Supreme Court decided a case entitled Quill Corp. v. North Dakota and held 8-1 that Quill did not have to collect use tax from its customers. As e-commerce expanded, it became obvious to everyone that the grounds for this ruling were egregiously wrong. And the issue came back to the Supreme Court in 2018, 26 years later, in a case entitled South Dakota v. Wayfair, Inc. Truthfully, the case became a proxy case over stare decisis. Both Chief Justice Roberts and Justice Kagan argued that stare decisis demanded that a longstanding case such as Quill should not be overturned, even though it was obviously wrong. Everyone, including both the justices and the advocates, understood that this case was serving as a proxy case for Roe. And despite the pleas of Roberts and Kagan, the court voted 5-4 to overturn Quill and require the collection of use tax. The majority was Kennedy, Thomas, Alito, Gorsuch . . . and Ginsburg, because even Ginsburg understood that stare decisis shouldn’t be used to uphold bad law.
Personally, as I’ve said before, I believe that state laws will generally end up allowing a 15-20 week period for abortion on demand, with significant restrictions applying thereafter. I’ve always looked at this as a balancing test type of question, since the fetus is a life (not a “potential life”, as Roe called it; it has its own unique DNA), but its rights cannot override those of its mother at a time when its entire survival is dependent on that mother. That’s also why I oppose “heartbeat bills” — and I think that state legislators who pass “heartbeat bills” or similar restrictions will very soon be known as ex-state legislators (and good riddance). Maybe this will actually help legislators get back to legislating instead of posturing for their online fan clubs.
[And just to preemptively answer people who don’t think the public is up to ousting crazies, I have to point you to Michigan’s 74th House District, which held a special election this week. The district, in suburban Grand Rapids, was ranked R +26, which means that Republicans would be expected to carry this district by over 20 points. Only a Republican had ever represented it since it was created. In 2020, the previous representative won by 24%. But this Republican candidate was all-in on Donald Trump’s “stolen election” theory, as well as other general nuttiness (including anti-vax paranoia and anti-semitism) and misspeaking (such as an infamous quote involving his daughters and rape). His oldest daughter even sent out a tweet urging people “pls for the love of god do not vote for my dad for state rep.” In the end, despite the R +26, he only got about 40% of the vote, while the Democrat got over 51% (the rest went to write-ins). Even allowing that most people have better things to do with their time than get too involved with politics, and even in highly partisan districts, real crazies generally lose.]
If the Dobbs majority holds through the Court’s final voting, Roe v. Wade will end its corrupting influence on national politics, and the battle will move back to a state-by-state battle. Perhaps there will even be another constitutional amendment passed one of these days — IF we stop looking to the Supreme Court to run the country for us.
OK, now I’m really done with this leak, and I’m done with Dobbs until we get the final opinion. I’ll have a “Quick Loop” post over the weekend to focus on some of the other events in the world that have been shoved to the back burner by this leak.
Be seeing you.