Turns out there was more than one leak of the draft opinion promising to strike down Roe. Three, according to SCOTUSBlog. The last two were in Politico. The first appeared in a Wall Street Journal editorial.
“While not formally presented as relying on a leak, the editorial transparently does,” wrote Tom Goldstein. “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.”
The rest of his piece is speculation, which is understandable given so few facts are known. But Goldstein asserts that only the liberal position benefits from the leak. That’s kinda sorta contradicted by the fact that the substance of the opinion was first leaked to the Journal.
Here are more thoughts at the end of this exhausting week.
The Chief Justice has charged the marshal of the court to find out who the leaker is. If identified, that person’s career in law will surely end. But there doesn’t seem to be anything illegal about it. Moreover, leaks have occurred before. Time magazine scooped the original Roe.
Thing is, leaks are probably a symptom, not a cause. They reflect the problem of a high court depending on secrecy to function. I’m not quite sure why secrecy is required. Other courts operate out in the open. It seems the court needs secrecy more than the public does.
Yeah, sure. The idea is that secrecy insulates justices from politics. If you believed that before the leak, you should not afterward. The leak revealed the court’s breathtaking degree of partisan hackery. Again, the leak didn’t comprise its neutrality. It revealed the absence of it.
The leak revealed something about the court that the Republican justices – and the Republican Party – do not want revealed, namely that the veneer of rhetoric encasing the court about deference to court precedent and honoring the rule of law is, well, bullshit.
We know because the five GOP justices on the cusp of overturning Roe harnessed the power of that rhetoric during their confirmation hearings. We know, because we know they didn’t believe a word of it.
The Supreme Court’s power is directly proportional to the public’s faith in it. Undermining that faith is underning its power. That’s bad for the constitutional order, to be sure, but it's worse for the GOP.
Remember, the Republicans are not working under the assumption that democracy is going to yield desired results. They accepted that it won’t years ago, not long after democracy yielded a Black president.
They need the court, the force of the law, to get what they want. This is partly why GOP leader Mitch McConnell is now acting like the leak compromised the sanctity of the court, even though no one is more responsible for compromising the court’s sanctity than McConnell.
If the public loses faith, the Republicans will be in trouble. Partially for this reason, Roberts is in damage-control mode, insisting against evidence that the GOP justices are “dedicated … to the rule of law.”
The leak illustrated something else – that democracy and the rule of law are for the Republicans jim-dandy as long as they affirm and maintain the natural order of things, with white Christian men on top.
When democracy and the rule of law threaten to undermine those hierarchies of power, as Roe does more than anything else, then democracy and the rule of law are no longer desirable, no longer tolerable. What do you do when law and order turn against you?
You turn against law and order.
You take on a criminal attitude.
That’s what five Republican justices have already done. You lie to get power. Then you use that power to upend law and order.
As Jamie Raskin put it, in a different but related context:
“We’ve got a class of people who think they’re above and beyond the rule of law. It’s a really dangerous thing for a democracy to have a class of people that feels so entitled by their power, their wealth and their connections that they can just defy the rule of law like this.”
The Republicans, by necessity, are now the pro-crime party.
The remedy to criminality is passing a law to stop it. In this case, turning Roe into statute. To do that, however, it’s going to take more Democrats in the Senate. The House already passed the Women’s Health Protection Act. Unless Joe Manchin and others have a change of heart about reforming the filibuster, Roe isn’t going to be law soon.
But even when it is, and I think it will be in the near term, striking down Roe is like pulling a thread from a sweater. Eventually, the whole sweater of privacy rights is unraveled. In quick fashion, state and local legislatures will enact various and sundry laws peeping and poking into our private lives. Even your online data will no longer be off-limits.
So when Roe goes down, the Congress will be in a race with the states. If you want the Congress to win, you have to put more Democrats in it.
That’s a heavy lift but it might be made more managable by the fact that rightwing anti-abortionists are already losing their minds.
This is Susan DeLemus, a member of the New Hampshire House of Representatives. In this video, she shows us something important.
As long as Roe was law, rightwingers could work quietly outside the penetrating gaze of a majority of Americans who, in fact, favor women having rights and privileges on par with men. (That’s what Roe does.)
Now that Roe is in jeopardy, rightwingers must face the penetrating gaze of the majority that’s no longer putting up their bullshit.
This is the result.
Rightwingers like DeLemus can’t tolerate disagreement. It literally hurts them. It causes pain. Disagreement raises the possibility of being wrong, and they can’t be wrong, because if they were, their enemies would be right, and that’s impossible. Rightwingers are always right.
Under the penetrating gaze of a majority of Americans who favor women having equal social status as men, the rightwinger’s black and white thinking is complicated in ways literally painful. They crack up.
Democrats are getting madder
Finally, I want to draw your attention to this. I thought about transcribing it, but I think the way Kirsten Gillibrand is speaking captures the feeling and rawness of experiencing Roe’s fall.
Every sentence here is a campaign slogan for the Democrats.