Monday night, a person with access to the Supreme Court’s internal documents leaked a copy of the Supreme Court’s draft opinion in Dobbs v. Jackson Women’s Health Organization to Politico. The Supreme Court confirmed Tuesday morning that the document was authentic. The breach of trust due to this leak was unprecedented and treacherous. Chief Justice Roberts has directed the Court’s Marshal to launch an investigation on who the leaker was and has vowed that the attempt to intimidate the Court will not work.
Let’s pray that he’s right.
Because we have the votes to overrule Roe.
Justice Samuel Alito wrote the Court’s draft opinion. Over the years, when the conservative bloc of the Court has had the votes to make a controversial decision, Alito has been the author more frequently than any other justice. Alito has the rare gift of being able to build consensus without sacrificing principle. For that reason, Chief Justice Roberts usually chooses him to write the high-profile decisions.
In this opinion, Justice Alito did what the state of Mississippi and many friends of the court (including the Alabama Center for Law and Liberty) had begged the Court to do: clearly state that Roe and Casey were wrongly decided and overrule them.
Justice Alito’s 67-page opinion masterfully goes through the history of the common law and the law of abortion in the United States, and he demonstrates beyond a reasonable doubt that nobody, at the time of the Fourteenth Amendment’s ratification, thought they were voting to protect the right to abortion. Such a right is found neither in the text of the Constitution nor in the history of our people. Thus, Justice Alito concludes that Roe and Casey were wrong.
He also walks through the Court’s factors on whether to overrule a precedent or not. While the matter should be as simple as overruling a precedent when it is clearly contrary to the Constitution (which is what Justice Thomas believes), the rest of the justices think it’s not that simple. Nevertheless, Justice Alito looks at the factors the Court typically considers, applies them consistently and fairly, and concludes that Roe and Casey should be thrown out.
Finally, as a matter of tactical brilliance, Justice Alito cites the times when Chief Justice Roberts, as the Deputy Solicitor General for the George H.W. Bush Administration, urged the Court to overrule Roe. He’s trying to use Roberts’ own work to persuade him to join the conservatives, and it’s a phenomenal move.
This is the opinion for which conservatives and pro-life advocates have been praying for decades. Over 60 million babies are dead because of Roe. But finally, Roe’s reign of terror is getting thrown in the ash-heap of history where it belongs.
One thing that pro-life advocates and conservatives need to understand is that overruling Roe and Casey won’t automatically make abortion illegal; it will return the matter to the states. I am among a minority of conservative lawyers who believe, as Chief Justices Parker and Moore of the Alabama Supreme Court have argued, that the Equal Protection Clause requires the opposite of Roe. The states have two options: protect all people (including the unborn) from murder, or protect nobody from murder. They can’t single out the unborn.
We are a good way off from the Court adopting that position. But in the meantime, giving the states the freedom to protect life is much better than forbidding them from protecting life.
In today’s Supreme Court press release, the Court noted that this opinion is not final. That is correct. Whoever leaked this opinion did so for the purpose of stirring up harassment and intimidation against the conservative justices. (By the way, if you’re upset about January 6th but aren’t about this, then you don’t get to talk about January 6th anymore.) I do not think their tactics will work, because if the justices change their votes, then it will forever undermine the public’s faith in the judiciary (which, ironically, is why Casey declined to overrule Roe). If anything, I think the intimidation tactics would strengthen the justices’ resolve to do what’s right.
But they are human.
Therefore, since the end of Roe is in sight, we need to pray fervently every day from now until the opinion is released that the justices won’t flinch. Please join me in praying daily for their protection, for the protection of their families, and that they will have the courage to stand by this opinion no matter what comes.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.