Tuesday, May 3, 2022

Part I

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'An Extreme Breach of Modern Supreme Court Protocol': Majority Opinion of Dobbs v. Women's Health Organization Leaked in Bombshell: But Why, and Why Now?

In an event virtually unprecedented in the modern history of the Supreme Court, a draft opinion in a major and explosive case was dropped. And it was reported at Politico. This amounts to something akin to treason inside the sealed world of the United States Supreme Court. And the issue at stake is abortion. And that’s what makes the entire issue so urgently important, and why we have seen this breach of protocol and ethics at the Supreme Court leading to an amazing night and what will undoubtedly be an amazing day on Tuesday of further revelations.

Last night, the big issue was that the Supreme Court entered what can only be explained as one of the most explosive moments of its long history. Last night, most of the nation was settling in for the night, but Politico dropped the bomb and the bomb was a story. And the story included not only material that came from a leaked majority opinion, supposedly written by Justice Samuel Alito, but the actual draft itself was appended to the Politico story. Now, when I say nothing like this has happened in the recent history of the Supreme Court, there have been rumors, there have been leaks coming from the Supreme Court, even with wildly anticipated decisions coming. That was true in 1973 and the infamous Roe v. Wade decision legalizing abortion. But there was nothing then akin to the actual document being leaked. Nothing like this has happened in the history of the Supreme Court in terms of the modern era.

The entire basis of the story by Josh Gerstein and Alexander Ward at Politico was the fact that a singular individual, the article makes that clear, had leaked what is claimed to be the majority opinion, which would be a 5-4 opinion, striking down Roe v. Wade and Planned Parenthood versus Casey. And the author of this particular draft is none other than Justice Samuel Alito.

Now, backing up, there had been speculation in recent weeks that the majority was likely to strike down Roe, and furthermore, there was a very good chance that Justice Alito would be writing the majority opinion. There are a lot of reasons for that, but the big question comes down to math. Would it be a 6-3 decision or a 5-4 decision? If it were a 6-3 decision, that would mean that the Chief Justice would be in the majority. But there’s every indication that Chief Justice John G. Roberts Jr. was not willing to go so far as to strike down Roe and Casey, trying to find some kind of middle ground. The fact that this leaked document indicates a majority of five indicates, indeed, that we are looking at a sweeping decision that would sweep away Roe v wade and Casey.

But the big story last night was actually the leak itself. The document, that appeared to be a draft of the court’s forthcoming opinion in the case Dobbs v. Jackson Women’s Health Organization, did reveal a sweeping decision. It would strike down Roe v. Wade and Planned Parenthood versus Casey. It would be a comprehensive repudiation of those two precedents. It would utterly transform abortion law in the nation. But we also need to note this very carefully. That draft was leaked in a subversive attempt, a brazen attempt, to undermine or to marginalize the court’s decision and perhaps even to divide its majority in order to prevent this draft decision from becoming the court’s actual decision to be released by the end of June.

The release of this draft is dirty pool. It’s horribly unethical. There hasn’t been a breach of the court’s prize confidentiality and protocol like this in any recent memory, probably in all of American history, even the history of the Supreme Court. One of the reasons is technological. There was not such a digital platform on which you could have the leak and then the publication of such a draft in digital form available just about to anyone in the world within a matter of minutes, if not in seconds.

Understandably, most observers assume that the draft has been leaked by someone who had both access and an axe to grind. Now, we understand the stakes are just incredibly high. As SCOTUS blog commented last night on Twitter, “It is 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.”

Now, you can count on the fact that we’re going to know a lot more in coming days. Some are already pointing an accusing finger at one specific clerk to a liberal Justice. I’m not going to mention the clerk. I’m not going to mention the Justice until we know more. But there is very little way that such a document could be obtained, possessed, and leaked except by someone who is an insider at the court and then almost assuredly is a clerk to one of the Justices. And in this case, it almost assuredly was a liberal clerk to a liberal Justice trying to divide the court’s majority before the actual decision can be handed down.

We’ll know more in time, but it might actually take more time to figure this out than is available before the court ends its term in June, and that means before the decision is actually handed down. But by then, we will have the court’s actual ruling. And that takes us to the content of last night’s astounding and explosive revelation.

If, indeed, this draft opinion is the court’s ruling, Roe v. Wade is dead. Casey is dead. The document reveals that the court’s majority, including Justice Samuel Alito and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, that majority is ready to drop the bomb. They state these words, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely, the due process clause of the 14th Amendment.”

It’s hard to overestimate the meaning of those words. They are sweeping in effect. They would sweep away Roe v Wade and Planned Parenthood versus Casey. They would sweep away those precedents that have had such horrifying impact on abortion in the United States, leading actually to the termination of countless unborn lives. When the Justices write, “We hold that Roe and Casey must be overruled,” they are not suggesting a new trajectory for the Supreme Court’s abortion jurisprudence. They are declaring an entirely new direction.

Now, the sound that you hear in the background is the collapse of almost a half century of horrifying Supreme Court precedent. If this document is indeed the court’s majority ruling, let’s just face it. Roe is gone, Casey is gone, and the abortion question returns to the 50 states. Now, just understand the reality. This would be the greatest pro-life victory of the last half century. The policy worker pro-lifers would then have to turn to honest legislative energy in Congress and in state legislatures, state by state, to contend for the unborn.

But as we well know, the pro-abortion side has enormous energy and incredible investment. The pro-abortion side, the abortion rights movement, is absolutely frustrated beyond even the capacity of words to convey that the abortion argument has moved away from them, particularly at the Supreme Court of the United States. The relief of pro-lifers in this leaked document may actually be eclipsed by the rage of abortion rights defenders. And make no mistake. This document was leaked in order to stoke that rage and to undermine the majority’s resolve.

A look at the document itself, as leaked, would indicate why there is such panic on the pro-abortion side. For example, the Politico reporters summarized the story this way. “The draft opinion is a full-throated unflinching repudiation of the 1973 decision, which guaranteed Federal Constitutional protections of abortion rights, and a subsequent 1992 decision, Planned Parenthood versus Casey, that largely maintained the right.” And as the story goes on, the reporters, tell us, “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.”

Two reporters to the Washington Post, that is, Robert Barnes and Mike DeBonis, reported the story this way. “The disclosure Monday by Politico of a draft opinion it said was circulated by Justice Samuel A. Alito Jr. was an extreme breach of modern Supreme Court protocol. The story said that after oral arguments, Alito, along with Justices Clarence Thomas and all three of Donald Trump’s nominees to the court, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, voted to overturn the precedent.”

Now, the reporters went on to say, “That doesn’t necessarily mean that it’s the final word on what the court will say when it decides the Mississippi case this term, which will end in late June or early July. Drafts of opinions are circulated to try to convince other Justices as well as serving as a document Justices can endorse.” And then notice these last words, very important, “And the leak could be calculated to spur the court to move in another direction.” Well, actually, that is the only plausible rationale for why the document was leaked as such an extreme breach of the High Court’s protocol. In the protocol and by the ethics of the Supreme Court, the leak of such a document would be not only unacceptable and unethical, but potentially illegal. And you can count on the fact that the court will be conducting an investigation of how this came to be.

But the bottom line is this. It is clearly a brazen attempt to try to intimidate the court and basically to frighten the court away from handing down such a sweeping decision that would indeed reverse Roe and Casey. There may also be another political dimension to this story. And that is the fact that some Democrats in Congress are trying to move to codify Roe v Wade in terms of legislation while the Democrats still have a slim majority in the House and in the Senate and while, of course, they have a Democratic president, President Joe Biden, in the Oval Office. The filibusters should block that in the Senate. But just look to the Democrats to be putting on political pressure. And by the way, this is a partisan issue. The Democratic Party is assiduously for abortion rights, right down to the requirements of its platform. And the Republican Party is the almost exact polar opposite. It’s very difficult for anyone to gain much influence in the Republican Party without holding to a pro-life position.

So like it or not, we are locked into a partisan context. And like it or not, we’re in a context in which the extreme politicization of this issue is going to be very visible, immediately apparent virtually any direction you look. For example, Senator Bernie Sanders was quoted by The New York Times as urging his colleagues on Monday to use the leaked draft opinion, says The New York Times, as motivation to end the use of the filibuster.

In a tweet, Senator Sanders, remember he’s an independent Democratic Socialist from Vermont who caucuses with the Democrats, “Congress must pass legislation that codifies Roe v Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.” Now, even The New York Times says that’s not likely to happen, but just notice the extremity of the proposal here. Senator Sanders is actually proposing that the Congress legislate an issue like abortion rights, even when the Democrats only have 50 votes. That just shows you the true extremism on this issue.

Part II

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'Roe and Casey Must be Overruled': Examining Justice Alito's Full Indictment of the Court's Previous Rulings on Abortion

But just for a moment, let’s actually look at that draft document. It’s almost a hundred pages long. It is amazing. It comes in the traditional form of a Supreme Court opinion. Coming from a Justice, it’s actually extremely complete at this point. Indeed, most of the footnotes are even in place. Certainly the arguments are in place. A look at the draft document reveals why the abortion rights movement is reeling. Justice Alito’s opinion is not just a refutation of Roe v Wade. It’s a full-on indictment of the absence of any constitutional basis for abortion rights in the first place.

Justice Alito writes, “Roe was remarkably loose in its treatment of the Constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which also is not mentioned.” Breathtakingly clear and astoundingly right. The right to abortion, argues Justice Alito, was just made up by the court’s majority, particularly Justice Harry Blackmun, who wrote the majority opinion back in 1973. Furthermore, he writes, “Until the latter part of the 20th century, there was no support in American law for a Constitutional right to obtain an abortion. Zero, period. None, period. No state constitutional provision had recognized such a right, nor had any scholarly treatise of which we are aware.”

That, again, is incredibly clarifying. Here you have Justice Alito writing for the majority, saying, look, as you’re looking at the claims that the abortion rights movement made, those claims didn’t even exist until the last half of the 20th century. It’s ridiculous to try to ground those arguments in the Constitution, which was written over 150 years before that. Later, Justice Alito asserts that the right to abortion has no sound basis in precedent. That is to say, not only is it not in the Constitution or, for that matter he says, in the Constitution of any state until the last part of the 20th century, it is also not present in the court’s precedent. The movement to demand abortion emerged from social pressures, he explains, not from the Constitution. Beyond that basic fact, he wrote, “Roe did not provide any cogent justification for the lines it drew.”

Now, that could refer to many different lines, but in particular to the lines that separated a woman’s pregnancy into three trimesters. As Justice Alito writes, that was entirely arbitrary. It has no basis in law. Furthermore, it has questionable basis even in the biology of pregnancy. Justice Alito pressed his case to acknowledge that the Supreme Court actually abandoned in 1992 the entire argument it had presented back in 1973. In other words, by the time it got to Casey in 1992, it upheld abortion rights but it completely displaced the argument that had won the day in 1973. It replaced it with an entirely different argument.

But Justice Alito makes clear neither argument has any Constitutional basis nor any authority in precedent. The draft document lays bare the lack of any legal or Constitutional basis for abortion rights. It strips Roe and Casey of authority. It declaims the court’s earlier arrogance in claiming that it had a right to settle the abortion question for the nation. The draft document states, “This court’s inability to end debate on the issue should not have been surprising. This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”

Now, many people in observing the court pointed out that Justice Alito’s particular role in writing this majority opinion might have come down to the fact that he is so willing to write in such simple and direct prose, taking the argument and laying it before the American people in order that just about any American who wants to understand it can. He’s doing that in this case. If this draft document is real, and it certainly appears to be real, then Justice Alito is basically stripping away the mystery and the confusion about Roe v. Wade and Planned Parenthood versus Casey, and simply saying they are nakedly wrong. They were never right in the first place. They were created out of whole cloth. And the second one actually created an entirely different cloth than the first one.

I mentioned last week on The Briefing that the editors of The Wall Street Journal had actually released an official editorial statement warning that there was a concerted political strategy undertaken by abortion rights supporters to try to break up the anti-Roe majority on the Supreme Court that we see even evidenced in this document. The editors just a few days ago wrote, “All this is aimed at swaying the Justices to step back from overturning Roe and Planned Parenthood versus Casey because the political backlash against the court will be ferocious.”

That’s something we’re going to have to watch just over the next several days. We’re going to see that political backlash. We’re going to see politicians, especially pro-abortion politicians, try to manipulate that. And the reason it will be more on that side is because that side’s the losing side in this particular decision. The other side, the pro-life side, basically needs to keep quiet as much as possible in order to allow the Supreme Court to get to the point of releasing this decision as its official and historic ruling.

Whoever leaked that document is a prime agent of the agenda of trying to dissuade or to intimidate the Supreme Court from taking this action. This leak is a brazen effort to intimidate the court’s majority. But I simply want to draw attention to the fact that inside the leaked document itself, we do find some incredibly encouraging words. It’s almost as if Justice Alito had some hint that something like this might happen.

Consider the closing words to the major portion of his ruling: “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what would happen, we would have no authority to let that knowledge influence our decision.” The Justice went on to write, “We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis and decide the case accordingly. We, therefore, hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled. And the authority to regulate abortion must be returned to the people and their elected representatives.”

Now, I’ll conclude with these words. There’ll be much more to say about this, we’ll know more about this situation perhaps later today, or certainly in coming days. But I want to end with this. We must all pray that this resolve and these very words, that is the words of resolve in this particular passage, will hold fast in days ahead. And when the Supreme Court hands down its ruling in coming weeks, the defenders of life dare to hope that this is indeed the court’s ruling and, oh Lord, let us pray, may it be true.

Part III

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A Major Win for Religious Liberty in the United States: Supreme Court Strikes Down Boston Ruling Against Group Flying a Christian Flag

But before leaving The Briefing today, I have to talk about something that wasn’t leaked by the Supreme Court but was officially handed down yesterday. And that was a ruling in a case from Boston that has big impact in terms of religious liberty. The City of Boston had traditionally allowed nonprofit groups to raise a flag in terms of a public assembly in front of Boston’s famed City Hall. And over the course of the years, from 2005 to 2017, something like 284 requests had been made. Only one was turned down. And that one request that was turned down was a request to fly a Christian flag. It was made by a nonprofit organization with a special interest in the Constitution.

And the Justices unanimously handed down a decision yesterday saying that Boston had acted unconstitutionally in saying no to just that one request and claiming that it was on the basis of religious speech. The majority opinion in this case was written by retiring Justice Stephen Breyer. And remember, he was appointed by a Democratic president, Bill Clinton, and he’s someone who has been on both sides of a lot of religious liberty jurisprudence. He is also someone who’s been a stalwart defender of abortion rights.

But on this case, he said that the key issue was whether or not allowing a nonprofit group to fly a flag in front of Boston City Hall, when City Hall allowed the flying of many flags, represented government speech and thus a government action establishing religion. The unanimous decision said no, that was not the case, that this is not government speech, and Boston had discriminated against this group and discriminated in effect against a Christian flag by saying that it would allow virtually any flag to fly, including one, by the way, advertising a credit union, but not one that represented Christianity.

It’s interesting that, of course, this was a unanimous decision. There were concurring opinions that meant they agreed with the result with the ruling, but they went further in terms of argument. The most interesting of them was a concurring opinion by Justice Neil Gorsuch, and Justice Clarence Thomas had joined him. He traced the problem back to something we discussed on The Briefing last week in the case of coach Kennedy, also before the Supreme Court.

And that is the so-called Lemon Test, which goes back, suggesting the court constructed, according to this test, suggesting that in order to be constitutionally permissible, an action or a law or a policy had to be secular in purpose, secular in effect, and without any extensive government entanglements. Justice Gorsuch has been particularly clear, Justice Brett Kavanaugh also similarly clear, that the Lemon Test is absolutely broken, that the High Court doesn’t even believe in it anymore, and that it should also be reversed precisely because the court hasn’t applied it in something like two decades, maybe even three, but lower courts still see it as a precedent and are still using it, almost always at the expense of religious liberty.

The Lemon test is so unworkable in and of itself, Justice Gorsuch said, that the City of Boston claimed to be applying the Lemon test in order to prevent violating the First Amendment and actually came up with a policy that did violate the First Amendment when the actual request for the flag did not. Justice Gorsuch wrote, “While it is easy to see how Lemon led to a strange world in which local governments have sometimes violated the First Amendment in the name of protecting it, less clear is why this state of affairs still persists.” He goes on to say, “Look, the High Court should simply be honest and say, ‘Lemon should never have been put into effect in the first place. It’s an unworkable test and it almost always comes at the expense of an American citizen’s religious liberty.'”

In a brilliant paragraph, Justice Gorsuch said, “Look, there’re so many people out there who claim to be exercised or bothered by somebody’s religious expression and Lemon gives them a weapon with which they can hit American citizens and violate their own religious liberty.” He writes this, “Just dial down your hypothetical observer’s concern with facts and history, dial up his inclination to offense, and the test is guaranteed to spit out results more hostile to religion than anything a careful inquiry into the original understanding of the Constitution could sustain.”

But just to remind ourselves of what we’re up against, where even some proponents of secularism may not have the self-consciousness to know that’s actually what they’re doing that is becoming a proponent of secularism, the attorney for Boston made this statement before the court. “In a democratic system like ours, it is critically important that governments retain the right and ability to speak on behalf of their constituents and take positions and privilege certain viewpoints when doing so.” So again, he’s saying the city has the right, even the responsibility, to “privilege” certain viewpoints. But then he went on to say that the city must act, “to ensure it cannot be compelled to use its city flagpole to publicize messages antithetical to its own.”

Now, remember what the message was here. The message was a Christian flag. And yet this attorney officially representing the City of Boston before the Supreme Court justified the city’s decision not to allow a Christian flag to fly by saying, “the city has a responsibility not to publicize messages antithetical to its own.” So is this actually a statement by this attorney saying that in terms of the values of the City of Boston, their values antithetical to Christianity? Just note this. Antithetical is actually the word that he used. Every once in a while, it’s just really important to know what we’re up against.