Roe V. Wade

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https://www.nytimes.com/live/2022/05/02/us/roe-v-wade-abortion-supreme-court

Leaked Supreme Court Draft Would Overturn Roe v. Wade

A majority of the court privately voted to strike down the landmark abortion rights decision, according to the document, obtained by Politico. The release of the document is unprecedented in the court’s modern history.

https://www.msn.com/en-us/news/opinion/roe-v-wade-supreme-court-opinion-leak-is-historic-act-of-judicial-destruction/ar-AAWSctr?ocid=BingNewsSearch

Supreme Court historians have always been able to rattle off significant decisions and important moments in Supreme Court history. Justice John Marshall establishing "judicial review" in the 1803 Marbury v. Madison decision, FDR’s court-packing scheme in 1937, the Court’s enshrinement of racism in 1896’s Plessy v. Ferguson, and its eloquent and overdue reversal in 1954 under Brown v. Board of Education, to name a few. The leaking of a draft opinion that addresses Roe v. Wade is a colossal, historic, destructive moment in the history of the Judiciary. Its significance cannot be overstated.

You will notice that I am not addressing the thorny issues of abortion, stare decisis, federalism or constitutional construction. The merits of an opinion on abortion can wait for another day. And the merits must wait if we are to preserve the integrity of the Supreme Court. 

Those who believe in the concept that the ends justify the means will accelerate the national conversation right to the substance of the so-called draft opinion. Worse, the leaker or leakers will likely, in my estimation, be celebrated by many as having engaged in some form of "heroic resistance," a Rosa Parks who refused to watch evil old judges change the state of federal law on abortion. This mindless approval will compound a historic act of malfeasance.

Already the politicians are jumping in to claim the draft opinion should spur renouncement of the filibuster rule in Congress, and by the end of the week there is a very real possibility that the outrageous treason of a sworn member of the Judiciary, clerk or otherwise, will be swept aside by a tide of emotionalism and delegitimizing hatred of contrary opinions. And that’s truly the rub here.

Institutions are populated by human beings, so whichever institution is looked at will show, upon close examination, moments of error, or worse. But the precedent of violating the sacred trust of the Court during its deliberative process is a fundamental assault upon the institution of the Judiciary. 

Courts and judges, by design, are supposed to rise above the din of passion and mob emotionalism to provide legal guidance and legitimacy to the great American experiment called the Rule of Law. They may well be imperfect, as we have seen from time to time even at the highest judicial levels, but the institution survives and maintains legitimacy by having a regular and inviolable process. 

It is worth pondering if President Biden’s waffling on court packing, and his assignment of a group of left-leaning lawyers to wonder aloud about Supreme Court reform was in full anticipation of this moment. 

Now it will be easier to either dilute a conservative majority by injecting new Associate Justices into the long-established 9-person entity or, even more dramatically, to push for the constitutional change of creating term limits—a notion rejected by the Founding Fathers so that Supreme Court members would never feel the tug of politics, i.e., the mob, in making their decisions.

The starting point in pushing back against this historically bad moment for our country needs to be a united Supreme Court announcing that this outrageous "hack" of their intellectual property is condemned by all of them without reservation. 

The rest of us, particularly lawyers from either side of the political aisle, need to form a chorus echoing the same sentiment. 

I am not so naïve as to think we’ll necessarily see these steps, but I am also not so jaded that I am willing to surrender the institution of such importance to all of us Americans to the swell of self-righteous people who celebrate the ends of this moment as somehow justifying the means that will undo our judiciary for generations.