By Rich Lowry
Tuesday, May 03,
2022
Despite what you might have learned
in high-school civics, the Supreme Court really only has one role in our system
of government — to uphold Roe v. Wade.
That’s the animating sentiment behind the
furor over the leak of a Supreme Court opinion drafted for
a majority by Justice Samuel Alito overturning the abortion decision.
Left-wing commentators have hailed the
shocking leak of the opinion and said that the Court deserves to be burned down
and even ended altogether for the offense of finding no constitutional warrant
for one of the Court’s most controversial and consequential decisions of the
last half century.
The leak, assuming it’s legitimate
(there’s little reason to doubt it) and assuming it came from someone on the
left of the Court (which seems most likely), is a brazen breach of the Court’s
rules in an attempt to sabotage its deliberations.
The Court has been one of the few
institutions in our national life that has managed to maintain a measure of
self-respect and integrity. Its oral arguments aren’t televised, which always
tempts people to play to the cameras. The arguments are invariably civil and
substantive, even if intense — in contrast to what is heard on cable news,
social media, or on the floor of Congress. The Court has honored
confidentiality as it considers cases, and justices write and share their
opinions among one another.
The leaker, whether a justice, a clerk, or
a staffer, clearly intended to engender a huge reaction to try to intimidate a
member of the majority into changing his or her mind.
This is how hardball politics works in
Congress or in the executive branch, where strategic leaks are the norm and
very often no one trusts anybody. It’s completely inimical to the spirit of the
Supreme Court, which is supposed to decide its cases as a strict matter of law
free of political influence.
Tellingly, almost no one on the left
criticized the leak — instead, many praised it as an act of brave defiance that
reflects the gravity of the moment.
This is yet another sign of the hypocrisy
of all the Trump-era lectures from progressives about the importance of norms
and neutrally applied rules. As soon as a Supreme Court decision might go
against them, they abandon all pretense of believing any of that and attempt to
bludgeon the Court into submission.
The leak, in its own way, brings home how
one of the key assumptions in the Court’s abortion jurisprudence has been wrong
all along. It imagined itself settling once and for all a highly contested
social issue. In reality, by attempting to take the issue out of politics, it
made the fight over abortion even more divisive, while making itself a
political football. Now, the issue that it sought to settle has blown back on
the Court, perhaps changing how it operates forever.
The leak speaks of the desperation of
pro-abortion forces to preserve Roe and its guarantee of a
radically pro-abortion regime everywhere in the United States. It doesn’t
matter if it requires a breach of trust at the Supreme Court — indeed, for many
of them, the Court as we know it isn’t worth having if it doesn’t uphold Roe.
Never mind if, as Alito’s draft opinion
devastatingly demonstrates, there’s no constitutional basis for Roe whatsoever.
The leak must fail. The Supreme Court
justices in the prospective majority should get 24/7 security, in case the
intimidation campaign reaches another level. Alito’s opinion, assuming it’s
final and speaks for a majority, should be released as soon as possible — to
send a message that the Court isn’t going to bend to pressure. And everything
possible should be done to ferret out and punish the leaker.
The Supreme Court’s loyalty isn’t to Roe but
to the Constitution, and it can show it by issuing the Alito opinion that its
critics want to foil by any means necessary.
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