Politico, a left-leaning Washington DC media outlet, published a story last night with the headline “Supreme Court has voted to overturn abortion rights.”
The source of the story is a leaked first draft of an opinion in Dobbs v. Jackson Women’s Health Organization circulated by Justice Samuel Alito in February to his colleagues, along with the “news” that Justices Thomas, Gorsuch, Kavanaugh, and Barrett are joining the opinion. Politico is not revealing its source for the draft or this information.
If the draft reflects the Court’s final opinion, we will be thrilled. While the end of Roe v. Wade will not be the end of abortion in this country, returning abortion to the states will result in a significant number of babies saved from abortion.
We will celebrate this victory—and we will continue to fight until EVERY child is protected from abortion.
But the reason someone leaked a draft copy of the Court’s ruling in the most momentous decision in fifty years is not to celebrate. Whoever leaked the document wants to ignite civil unrest, unleash pandemonium, and perhaps even influence the Court before it issues its final opinion.
This is nothing less than an attack on the rule of law. It is an effort to undermine the integrity of the judicial process, and to de-legitimize the decision before it is even released. What Justice Alito himself styled his “first draft” of the opinion will be publicly subject to criticism from law professors, politicians, and pundits. Any changes between this first draft and the final opinion will be scrutinized and given significance never intended by the justices. A cottage industry will spring up to speculate about what the final opinion might have said had a draft not been leaked.
The leak is an attempt to poison the independence of the judiciary to manipulate a political outcome. The last time we saw anything like this was prior to the Dred Scott decision.*
Now, as then, those who seek to suppress fundamental rights of personhood will stop at nothing to pervert the judgment of the Court.
* Before becoming president, James Buchanan tried to lobby the Supreme Court to issue a broad ruling in the Dred Scott case that would settle the issue of slavery once and for all. Several Justices had been secretly apprising Buchanan of the progress of the case. As Buchanan took the oath of office on March 4, 1857 from Justice Roger Taney, author of the Dred Scott decision, Taney whispered something in Buchanan’s ear. In his inaugural address, Buchanan said he would “cheerfully submit” to the Court’s ruling as it would “speedily and finally” resolve the question of slavery. Two days later, the Court handed down its ruling in Dred Scott.