Japanese Admiral Isoroku Yamamoto, who planned and executed the attack on Pearl Harbor, is famously reputed to have written in his diary, “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” While the views of Americans vary about abortion, there is no doubt that only a significant minority want to ban abortion. The majority of Americans believe it is, and should be, a constitutional right.
But abortion is only the beginning of the conflagration caused by the leak of the draft opinion. It was obvious that this would strike a significant blow to the integrity of the Supreme Court, not because of the content of the draft but because it proved, in the minds of many, that the catastrophizers were right and the Court is now nothing but a machine honed to do the bidding of the radical right wing.
In what may be the purest distillation of Yale Law School of all time, YLS students declare, in chalk: “WE ARE THE LAW.” pic.twitter.com/KmSiMCE6gJ
— Aaron Sibarium (@aaronsibarium) May 4, 2022
While most lawyers and legal academics were appalled by the leak, the leaker was hailed as a hero by progressives for revealing what they wanted revealed, that their worst fears of the conservative capture of the Supreme Court were true. And even if abortion rights aren’t enough to light everyone’s fire, the text expose the view that the Dobbs opinion is merely the starting point for the radical right-wing remake of America.
In the draft decision Alito criticizes both Lawrence v. Texas and Obergefell v. Hodges as similar to Roe and Casey as the rights protected in those cases are not “deeply rooted in history.” So, coming soon to a red state near you, expect laws that outlaw sodomy and gay marriage as the Court has signaled they’re willing to upend stare decisis on these issues.
Griswold. Lawrence. Loving. Obergefell. This might have been viewed as absurdly hyperbolic two days ago, but after the leak of the draft, these are no longer ridiculous fearmongering cries. If you want someone to blame for raising this possibility, blame Sam Alito.
To the extent that the abortion battle might not be the foremost issue in the minds of Americans, consider what adding contraception, gay sex, inter-racial marriage and gay marriage to the mix will do. This suddenly touches a lot of lives. Who believes birth control should be criminalized? Who doesn’t know a gay person and believe they should be allowed to live their life without being criminalized for who they love? Maybe not you, but then you’re the outlier. Even Dick Cheney learned that lesson.
This suddenly isn’t about abortion anymore, but about the litany of rulings that ended the criminalization of conduct that today seems so obviously proper and ordinary as to be unworthy of a second thought. Now, we have to give them a second thought. Now, they require a second thought because Sam Alito said so. They’re in play because Alito put them in play. And to be fair, if Roe and Casey can be reversed, then there is no assurance that any unenumerated right is safe. And even enumerated rights are subject to reimagination, whether by this Court or another in the future should stare decisis be a secondary consideration.
It may be that the leaked draft was Sam Alito’s most fevered dream opinion, and the other justices who voted with him rejected his opinion, possibly even were ready to change their vote. One of the speculative theories about who leaked the decision is that it was a conservative clerk, who sought to lock in a waffling justice. It’s possible that the hero of the left wasn’t exactly interested in transparency.
The point isn’t whether America can reach a consensus about abortion, even if the extreme right wants to ban it completely and the extreme left wants it available on demand up to the moment of birth. The point now is that the Supreme Court just confirmed the worst fears of a nation that it will use its authority in radical ways. And if it is no longer a court, and just another political wing of the right, then it deserves no respect.
Students at Yale Law School, to no one’s surprise, immediately took the path of rejecting the Supreme Court’s legitimacy. The irony is obvious, that they relegated law to themselves while studying what a now-illegitimate court has to say about it. These are the kids who will wear robes some day. And as far as they are concerned, they are the law. If your response is that makes them no different than Alito, just the other flavor, so what? They know that they are on the side of good, so it’s entirely different.
What will ultimately become of abortion, assuming the Supreme Court overrules Roe and Casey, will eventually be a compromise because that’s what the vast majority of Americans want. For those who believe passionately that abortion is wrong and evil, you are the minority and will not prevail.
But in the meantime, this leaked draft has not only given energy where it had waned, motivated the progressive wing to rejoin the fight and raised the specter in the minds of the moderate that the radical right was more dangerous than the radical left. And it’s no longer possible to shrug off the catastrophizers given that the Supreme Court appears to be doing the unthinkable, and Alito gave every reason to believe that it’s merely the start of their radical shift.
I didn’t believe this was possible. I didn’t believe the Court would so foolish as to squander its integrity on such radical rulings. But I really didn’t believe that Alito was be so crazed as to raise the possibility, if not probability, that a series of pillars of American society as we know it would fall. Griswold. Lawrence. Loving. Obergefell. This is no longer about legal analysis, but about the radical right-wing reshaping of a nation. Americans don’t want it and won’t stand for it. And they are now awake.
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