Yeah, That's Not The Headline Here

BIG SCOOP — The Supreme Court has voted to overturn abortion rights, draft opinion shows.

"We hold that Roe and Casey must be overruled," Justice Alito writes in an initial majority draft circulated inside the court.https://t.co/EtlZQrLFnK

via @alexbward @joshgerstein

— Sam Stein (@samstein) May 3, 2022

The release of a draft Supreme Court opinion, before the Court has made a final decision and issued its ruling, is a stupendous body blow to the rule of law. If a lawyer did this, they should never again be allowed to practice law. https://t.co/7WXgpho7vs

— Robert Kelner (@robkelner) May 3, 2022

It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.

— SCOTUSblog (@SCOTUSblog) May 3, 2022

Roe v. Wade did more to undermine the rule of law than any other judicial decision in our lifetimes.

That said, I'm not at all confident that overruling Roe would undo the damage, and greatly fear that it would compound it.

— George Conway🇺🇦 (@gtconway3d) May 3, 2022

I'm gonna call bullshit on the first sentence of that tweet. It's a completely unsupportable statement and a gross exaggeration. Roe is almost 50 years old. How it undermined the rule of law is beyond me. The second sentence, however, even though derived from the first, is sounder. Especially if the published opinion retains almost any of the language reportedly in this draft. 

And the first indication of how much this decision to overturn Roe undermines the rule of law, is that this draft opinion has been leaked.  That wasn't done because Alito has become the second coming of Benjamin Cardozo or Learned Hand.  He's not even O.W. Holmes here,  This reads more like a love note to Clarence Thomas.

A GOP pollster I spoke with a couple weeks ago felt confident that the ‘Roe’ issue was already baked in and wouldn’t be a driving force in the mid-terms.

That’s a risky bet.

— Mike Madrid (@madrid_mike) May 3, 2022

Oh, and mid-term predictions like this:

Democrats will make this midterm election about January 6th, and Republicans will make this midterm election about $6.00 gas.

The winning strategy is clear as day.

— Byron Donalds (@ByronDonalds) May 2, 2022

Just evaporated. Never make mid-term predictions 6 months out. You never know what will happen; like someone leaking a Supreme Court draft opinion on Roe. Believe me, this one is gonna be bad:

Alito's draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not "deeply rooted in history." https://t.co/4690k0KG1F pic.twitter.com/urF7A02INU

— Mark Joseph Stern (@mjs_DC) May 3, 2022

How rare is a Supreme Court breach? Very rare https://t.co/ULYdTle7aJ @joshgerstein

— Dave Brown (@dave_brown24) May 3, 2022

I have to pause to point out Rehnquist didn't think much of "rights" in general, because it was not "deeply rooted in (legal) history" (which is what Alito means; or he should).  Rehnquist prefered the fixity of property rights in English common law, because in the origins of common law property was what mattered.  Those with property had "rights," those without, didn't (and so only landowners could vote under the "Founder's version" of the Constitution.)  People had no rights in common law because they were subjects of the Crown.  Tort law is where rights for individuals began, but that hardly equates to our modern concept of civil rights.  It's a mug's argument, in other words.  Alito doesn't like it, and he gets to decide, you don't.  Which is not how the Court is supposed to function, but why bother with legal fictions when the majority rules, right?  Even if it's a minority of 5 ruling over a majority of American citizens.

And it isn't really the outcome that bothers me; it's the naked aggression of raw power.  This is not legal reasoning, it's "Fuck all y'all!  What're ya gonna do about it?"  Roe was deliberated over for months; Warren worked the Court on Brown until he could get a unanimous opinion (it took a long time).  Alito is raising his middle finger to everybody who ever disagreed with him.

The draft sets out a vision of substantive due process as inflexible — a right exists only if it’s been recognized for generations. No room for constitutional change to match a more tolerant and enlightened society. A recipe for no Roe OR Griswold OR Obergefell. https://t.co/hysbD3EUO0 pic.twitter.com/yw6ajomViy

— Hannah (@hannnahmmarie) May 3, 2022

"Generations" is obviously an ill defined term.  Roe has been the law of the land for nearly 3 generations, Griswold for almost four.  Not long enough, because?  Because Alito doesn't like it, that's why.  If it's not old enough, it's not good enough.

I suppose it's a good thing the 13th Amendment and 14th Amendments are in the Constitution.  The Roberts Court has already all but repealed the 15th.

What's going to be interesting now is how much this draft opinion is rewritten between now and publication. I would bet good money that it will be. But it also sounds like this is the opinion Alito has been waiting his whole life to write. And that is not a good thing. Because the excerpts make it sound more like the first draft of a very angry law review article than like the Olympian reserve one usually associates with Supreme Court opinions; especially ones that upend this much fundamental law (if Roe falls, what protects Griswold? Or practically anything handed down by the Warren court? There are lines in this draft that sounds like Alito and Co. are taking a blow-torch to precedent because "WE'RE THE SUPREME COURT, BITCHES!!"

This is an earthquake — for what it portends for the future not only of Roe, but of *all* implied fundamental rights, and for the stunning breach of the Court’s norms of confidentiality.

And whatever you think of the leak, the former has *everything* to do with the latter.

— Steve Vladeck (@steve_vladeck) May 3, 2022

You really have to understand that, or you don't understand this situation at all.

Rick is absolutely right here. It’s not at all obvious that the leak is coming from those looking to generate pushback against the five Justices supposedly in the majority, rather than from those looking to soften the ground for the result #SCOTUS now seems likely to reach. https://t.co/0Gw3PORbB9

— Steve Vladeck (@steve_vladeck) May 3, 2022

I think that argument can be made. I don't think it's going to play out in the public reception of the published opinion, though; even if Alito's inflammatory language is greatly toned down. It won't fool the opponents of this decision, won't please the supporters (who will think the Court went "soft"), and what most people will know is: the entire country is now Texas. And you don't even get Tex-Mex and BBQ as consolation prizes.

The damage this does to the institution of the Court may well be massive.  "Generations" is a very thin screen to hide behind.
 

This opinion says states can criminalize abortion, with no rape or incest exception. It is exactly the hardline position I’ve been saying the Court is going to impose for the last 3 years. It will set women back in profound ways. Congress must act ASAP. https://t.co/prjHTyUrA5

— Neal Katyal (@neal_katyal) May 3, 2022

Yeah, that's not gonna happen.

The draft Roe opinion appears to be as bad as expected, but I’m glad it leaked because this leak will foster anger and distrust within the irredeemable institution that is the Supreme Court of the United States.

— Ian Millhiser (@imillhiser) May 3, 2022

Much more likely.

Ten bucks this opinion provides a selective history of eugenics....

— Melissa Murray (@ProfMMurray) May 3, 2022

I would lose my money.

The Supreme Court has learned its lesson

by Susan Collins

— New York Times Pitchbot (@DougJBalloon) May 3, 2022

I don't think anybody's gonna give a shit what Elon Musk tweets about for a while.