A recently leaked draft majority opinion written by Justice Samuel Alito on behalf of five conservative Supreme Court justices would overturn the landmark Roe v. Wade decision, which has been the source of bitterly partisan national controversy ever since it was issued by a much more liberal Supreme Court in 1973. Roe v. Wade asserted the existence of a constitutional “right to privacy,” which would protect individuals from state laws which would declare certain acts to be illegal, even though the text of the US Constitution does not mention such a right.
The leaked document was provided to Politico by an undisclosed source within the Supreme Court, and it is now publicly available. It is 68 pages long, including a 31-page appendix of relevant historical state laws and 118 footnotes. It was labeled as a first draft of the majority opinion and includes a notation that it was circulated privately among the justices for review and discussion on February 10. Its public disclosure was an unprecedented breach of the Supreme Court’s tradition of strict secrecy surrounding its internal deliberations before the publication of its final decisions.
The day after Politico published Alito’s draft majority opinion, Supreme Court Chief Justice John Roberts confirmed in a press release that the leaked document was authentic, but warned that the draft “does not represent a decision by the Court or the final position of any member on the issues in the case.” In fact, such draft decisions frequently undergo significant revisions before they are made public in final form during the last weeks of the court’s term in May or June.
It is possible for one or more of the justices who have signed onto a draft decision to change their minds and withdraw their support for that position before the court’s decision on the case is finalized. Therefore, many speculate that Alito’s draft decision was leaked by a liberal insider at the court in an effort to generate enough public pressure on at least one of the five conservative justices who signed it to force that person to remove their signature, thereby permitting the Roe decision to survive.
It has been widely reported that Chief Justice Roberts was reluctant to join Alito and the other conservative justices in overturning the Roe decision. Roberts is said to have been seeking support from the conservative justices for a less drastic ruling that would uphold the Mississippi state law which prompted the current Supreme Court case, but which would also allow the 1973 Roe decision to remain in force.
A TEXTBOOK CASE OF JUDICIAL OVERREACH
Conservative authorities on constitutional law have always been highly critical of the Roe v. Wade decision. They have condemned it as a prime example of “judicial overreach,” in which liberal judges intent on pursuing their personal agendas usurp the authority of elected officials by “legislating from the bench.” Instead of confining the scope of their judicial rulings to the plain meaning of the written laws, as well as the clear intent of the legislators who wrote those laws, liberal judges often exceed their authority by seeking to find justifications to invent new laws and “rights” based upon their own political or ideological beliefs.
Roe v. Wade introduced the novel legal concept that a woman has a constitutional “right to choose” what will happen to her unborn child during the early stages of her pregnancy. At the time, the ruling was widely hailed by liberal and feminist activists because it empowered a woman to take control over that aspect of her life, regardless of the moral standards set by the laws of the state in which she lived. Advocates of the decision also claimed that it was necessary to protect the health of those women who wished to safely exercise their right to choose.
However, the Roe v. Wade decision did not give a woman complete control over the fate of her unborn child. It only gave a woman the “right to choose” during the initial stage of her pregnancy. The ruling also recognized that states have a legitimate interest in passing laws to protect the life of an unborn child during the later stages of pregnancy.
The Supreme Court reviewed the original Roe v. Wade decision in a 1992 case called Planned Parenthood v. Casey. That ruling confirmed the principle of a woman’s “right to choose” first established by Roe, but redefined the initial stage of pregnancy, when the “right to choose” is applicable, by limiting it to the time before the unborn fetus becomes “viable.”
As a practical matter today, despite the Roe and Casey decisions, most states in this country still have laws which limit a woman’s right to choose during the later stages of her pregnancy.
LIBERALS VIEW ROE AS “SETTLED LAW” BUT CONSERVATIVES DON’T
After the Supreme Court handed down the Casey decision in 1992, liberal constitutional scholars began to view the Roe decision as a “settled law” which was protected by precedent against any further legal challenges.
But conservative legal authorities never accepted the liberal legal arguments in support of the Roe decision. They remained determined to challenge it again the next time conservatives gained control of a clear 5-vote majority on the Supreme Court bench.
That opportunity arose after the 2020 confirmation of Justice Amy Coney Barrett created a stable 5-vote conservative majority, which then decided to reconsider the Roe decision in its review of a current case known as Dobbs v. Jackson Women’s Health Organization which challenged a law passed by the state of Mississippi which terminated a woman’s right to choose at 15 weeks. The New Orleans-based 5th Circuit Court of Appeals struck down that law for violating the standards set by the Casey decision. That prompted the state of Mississippi to appeal the ruling to the Supreme Court.
The Roe decision has been a flash point of controversy between conservatives and liberals for the past 50 years, but it has come to the fore now because Barret’s appointment changed the ideological balance of the Supreme Court bench.
For most of the time since the Roe v. Wade decision was handed down, the Supreme Court bench has been roughly equally divided between conservative and liberal jurists. In general, there have been four justices with a consistently liberal judicial outlook, and four justices with a consistently conservative legal outlook. The ninth Supreme Court justice was traditionally more unpredictable, and usually provided the “swing vote” which decided the more ideologically polarized cases before the court by a narrow 5-4 majority.
THE ROLE OF THE SWING VOTE JUSTICE
Historically, the Supreme Court justices which provided the swing vote were originally nominated by a Republican president but chose to view each case which came before the court from a neutral point of view, based upon the constitutional principle that Supreme Court rulings should always be guided strictly by the law, and blind to all partisan political considerations.
The first post-Roe v. Wade Supreme Court justice to gain a reputation for casting swing votes in 5-4 decisions was Sandra Day O’Connor, who was nominated by President Ronald Reagan in 1981. During the earlier years of her tenure on the then-liberal dominated Supreme Court, from 1981 to 1988, O’Connor usually voted with the conservative bloc of justices, led by William Rehnquist. But after the overall makeup of the Supreme Court bench became more conservative, with the addition of Republican-nominated justices Anthony Kennedy and Clarence Thomas, O’Connor began to break away from her conservative colleagues more frequently in decisions on politically polarized cases. From 1994 to 2004, she voted with the liberal bloc on the Supreme Court bench — made up of John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer — in 28 cases, while during the same period voting with her conservative colleagues 82 times.
After O’Connor retired from the Supreme Court bench in 2005, Anthony Kennedy, another Reagan nominee, became the next justice to most frequently cast the deciding vote in politically polarized 5-4 decisions, although he developed a reputation for being somewhat more conservative in his outlook on such cases than O’Connor had been.
Kennedy remained on the Supreme Court bench until 2018, when he retired and was replaced by the more reliably conservative Brett Kavanaugh, who was nominated by Donald Trump. During the latter years of Kennedy’s tenure on the court, Chief Justice John Roberts would also occasionally separate himself from his conservative colleagues on the bench. Most notably, in his highly controversial 2012 decision on the constitutionality of the Affordable Care Act (Obamacare), Roberts argued that its “individual mandate,” which required all Americans people to buy health insurance, qualified as a tax instead of a penalty, and therefore was constitutional.
A CRUCIAL CHANGE IN THE COURT’S BALANCE
After Kennedy stepped down, Chief Justice Roberts continued to play the role of swing voter in deciding many of the court’s narrow 5-4 decisions. But all that changed during the final days of Trump’s presidency, when he nominated conservative jurist Amy Coney Barrett to the bench as a replacement for Justice Ruth Bader Ginsburg, who, until her death in 2020, had been the leader of the court’s liberal bloc. That move altered the longstanding ideological balance on the court, giving the conservative bloc, with the addition of Barrett to Alito, Kavanaugh, Neil Gorsuch, and Clarence Thomas, a reliable five-vote majority, and reducing the liberal bloc, due to the loss of Ginsburg, to just three votes, those of Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Most crucially, that change meant that Chief Justice Roberts was no longer able to control the outcome of politically polarized cases by casting a deciding swing vote. With the reliable five-vote majority of their own, the conservative justices gained the power to dictate the outcome of even the most controversial cases before the Supreme Court, and overrule even well-established precedents, such as the Roe and Casey decisions, without the need for any support from Roberts.
This explains why both conservative and liberal legal advocates were so closely watching the outcome of the current Mississippi case. For the first time, the conservative majority on the Supreme Court bench had the votes to reverse the Roe precedent on their own, and thereby fundamentally change the 50-year trend of mostly liberal decisions by the Supreme Court.
Alito’s draft decision is based upon the conservative legal argument that the original Roe ruling had been wrongfully decided in the first place back in 1973. The fundamental question at issue was whether the Supreme Court had the authority to establish a brand new constitutional right to privacy for individuals superseding the authority of state laws.
The Supreme Court heard oral arguments in the Dobbs case in December, and by February, the new majority of five conservative justices had reached an agreement to uphold the Mississippi law based upon their acceptance of the argument that Roe v. Wade had been wrongly decided and needed to be overturned.
LEAKED DRAFT DECISION TRIGGERS CONTROVERSY
Justice Samuel Alito was then appointed to write a draft legal decision explaining the reasons for that conclusion, It was to be circulated privately among all nine Supreme Court justices for debate, discussion and further refinement, before the decision on the case was to be finalized at the end of the court’s current term, but the draft was leaked by someone inside the Supreme Court to the Politico news website, triggering the current controversy.
In his draft decision on behalf of the conservative majority, Alito wrote, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to [a woman’s right to choose] and no such right is implicitly protected by any constitutional provision… It is time to heed the Constitution and return the issue. . . to the people’s elected representatives [in the state legislatures].”
Justice Alito decision features a detailed legal critique of the Roe decision and its polarizing influence on national politics. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the [right to choose] issue, Roe and Casey have enflamed debate and deepened division,” Alito wrote.
Alito noted that in the original Roe decision, which was written by Justice Harry Blackman, a Richard Nixon appointee, there is “the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the. . . right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”
Because a specific source for it in the Constitution cannot be found, Alito argues, “The inescapable conclusion is that a right to [choose] is not deeply rooted in the Nation’s history and traditions.”
In his draft decision Alito also cites prominent liberal legal authorities, including the late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe, who at certain points in their careers raised their own objections to the reasoning behind the Roe decision, or its negative impact upon the American political process.
POTENTIAL FALLOUT FROM REVERSING ROE
Alito insisted that overturning Roe would not jeopardize subsequent liberal rulings by the Supreme Court, based upon the same right to privacy that Roe first proclaimed, and which gave individuals license to engage in morally objectionable activities that had been banned by various state laws.
“We emphasize that our decision concerns the constitutional right to [choose] and no other right,” Alito wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern [the right to choose.]”
Alito also denied that overturning the Roe decision would be a serious legal setback for the rights of women. He suggested that women could work to change any state laws to which they object that would become applicable if the Roe decision were overturned. “Women are not without electoral or political power,” Alito writes. “The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”
He also argued that negative social attitudes towards women “have changed drastically” during the 50 years ago since Roe was decided, and that the current increased demand for adoption gives women better alternatives in deciding the futures of their unborn babies today than they had in 1973.
Since the Roe decision was handed down, women across the country have also gained access to safe and effective medications, via the internet or mail order, that give then ability to exercise their choice for their unborn children by themselves, without the fear of interference or punishment due to any laws in their state which would limit that ability.
JUDICIAL RULINGS MUST NOT BE INFLUENCED BY PUBLIC OPINION
Alito also argues that in deciding whether or not to overturn the Roe decision, the justices must not allow public opinion to become a factor. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito writes. “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 will happen, we would have no authority to let that knowledge influence our decision.”
Alito concludes that, “the Constitution does not prohibit the citizens of each State from regulating or prohibiting [a woman’s right to choose]. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
THE LARGER SIGNIFICANCE OF ROE’S “RIGHT TO PRIVACY”
The overriding concern for liberal activists today is that the “right to privacy” established by the original Roe decision provides the basic legal foundation for the entire superstructure of today’s social policy standards which the liberals have succeeded in imposing, through their influence over the mainstream media, on all aspects of American society, from the schoolroom to the workplace.
By invoking Roe’s made-up constitutional “right to privacy,” liberals have been able to substitute an individual’s personal preferences for the traditional American religious and moral standards long embodied in and enforced by state laws. The broad public acceptance of the fictitious “right to privacy” has given liberals the power to arbitrarily dictate their own personal codes of right and wrong, as well as personal behavior, and even acceptable speech, on everyone else in American society, overruling the religious beliefs and moral standards of others.
The principle behind the Roe v. Wade decision, which empowers each individual to impose their own personal preferences on everyone around them, has given secular liberals a potent weapon in their ongoing cultural war against the traditional religious and moral beliefs which provided the foundation for this country’s basic Judeo-Christian values.
LIBERALS ATTACKING THE SUPREME COURT’S INDEPENDENCE
This explains why the liberal political community, up to and including the Biden White House, has so enthusiastically welcomed the unprecedented breach of Supreme Court ethics which the leaking of the Alito memo represents. Biden’s White House spokeswoman, Jen Psaki, was also quick to encourage those liberals deeply concerned about the prospect that Roe will be overturned to engage not only in public protests against Alito’s draft decision, but also open harassment of the other conservative Supreme Court justices who signed onto it in February.
Speaking on behalf of the president, Psaki said, “For all those women, men, others who feel outraged, who feel scared, who feel concerned — he hears them, he shares that concern and that horror of what he saw in that draft opinion.” She then added, only as an afterthought, a mild pro forma warning that “We should not be resorting to violence in any way, shape or form.”
When later asked by a Fox News reporter whether Biden approved of those leftist progressive activists who posted a map of the homes of the conservative Supreme Court justices to enable liberal protesters to organize demonstrations there, Psaki responded that such demonstrations are a perfectly acceptable as a form of peaceful protest.
Psaki’s statement ignores the fact that picketing or parading in front of a court building or the home of a judge is a clear violation of the federal criminal code. Title 18, Part I, Chapter 73, Statute # 1507 of the code states: “Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both.”
After a liberal activist group called ShutDown DC staged protests by 100 people against the Alito decision outside the homes of Justices Kavanaugh and Roberts in the Washington suburb of Chevy Chase, Maryland, and announced plans for a similar protest outside the home of Justice Alito, some conservatives were asking why Attorney General Merrick Garland failed to order their arrest and prosecution under the federal statute.
The Supreme Court justices who live in Virginia are also covered by a state statute which makes it a misdemeanor to picket “before or about the residence or dwelling place of any individual, or who shall assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual’s right to tranquility in his home.”
In a further effort to justify the illegal demonstrations, Psaki added, “I think the president’s view is there’s a lot of passion, a lot of fear, a lot of sadness from many, many people across the country about what they saw in [Alito’s decision].”
SCHUMER IS PART OF THE PROBLEM
Nebraska’s Republican Senator Ben Sasse has called upon the White House to publicly condemn any attempt by liberal activists to intimidate and influence the decision of Supreme Court justices, who are supposed to make their decision based solely upon the law and disregard public opinion and political considerations.
“President Biden knows this is dangerous, and he ought to have the guts to say it,” Sasse said in a statement. He also said that Psaki’s attempt to minimize the significance of the liberal effort to exert extreme political pressure on the Supreme Court conservative justices “doesn’t cut it.”
“This isn’t how adults act,” he said. “This isn’t how American self-government works.”
Sasse also blamed Senate Majority Leader Chuck Schumer for engaging in similar efforts to intimidate conservative Justices Neil Gorsuch and Brett Kavanaugh for their views at a March 2020 liberal rally that was held on the Supreme Court steps.
“I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the prices,” Schumer at the time. “You won’t know what hit you if you go forward with these awful [conservative] decisions.”
That same day, Senate Minority Leader Mitch McConnell issued a statement calling Schumer’s remarks as “astonishing, reckless, and completely irresponsible,” and the National Review condemned him for acting like a “thug.”
Because of that incident, Sasse claims the Schumer must now accept responsibility for leading the ongoing liberal effort to undermine the legitimacy of the Supreme Court. “Don’t pretend this is an isolated incident,” Sasse said. “Two years ago, Chuck Schumer stood on the Supreme Court steps and spat threats at Justices Gorsuch and Kavanaugh. For months, progressive partisans have worked to delegitimize the court, and now activists are doxxing justices’ homes.”
In 2018, the Supreme Court building was attacked by a liberal mob protesting the installation of Justice Kavanaugh. Hundreds of protesters tried to break down the building’s 13-ton bronze doors. They scaled the building and threw tomatoes and water bottles at the cars of justices who had attended his swearing-in ceremony, including liberal Justices Ruth Bader Ginsburg and Elena Kagan.
To prevent a similar incident if Justice Alito’s draft decision to overturn Roe becomes the law of the land, a high security fence has been erected surrounding the Supreme Court building, and additional security measures have been put in place.
BEEFING UP SUPREME COURT SECURITY
Meanwhile, members of both parties in Congress are now moving to provide greater protections for Supreme Court justices who feel threatened by the demonstrations at their homes. Senator John Cornyn, a Texas Republican, and Senator Chris Coons, a Delaware Democrat, have introduced the “Supreme Court Policy Parity Act” to provide greater law enforcement protections to the justices and their families. The bill would give greater arrest authority to the police assigned to the high court and make obstructing or impeding those police a crime.
Federal law already makes it a crime to threaten federal judges, and that includes threats of vigilantism.
Cornyn has also called the leak of Alito’s draft opinion “an attack against the independence” of the US court system, the government’s “crown jewel.”
“That’s the reason why we go through this laborious process of advice and consent for federal judges — to protect that independence,” Cornyn said. “And it’s not just an attack against the independence of the judiciary; this risks violence against members of the Supreme Court and their families.”
“We can’t stoop to the level of the mob — we have to stand up for what we believe to be right,” he concluded.
While the leak of Justice Alito’s draft decision came as a shock to the legal community, which has always viewed the Supreme Court as the country’s ultimate guardian of the rule of law, it was only the most recent incident in a long campaign by liberal activists to undermine the legitimacy of one of the most respected institutions of the American government.
THE COURT IS ANOTHER CASUALTY OF THE LIBERAL CULTURE WAR
As liberal commentator Bari Wiess put it, the Alito leak “captures, in a single act, what I believe is the most important story of our moment: the story of how American institutions became a casualty in the culture war. The story of how no institution is immune. Not our universities, not our medical schools, not legacy media, not technology behemoths, not the federal bureaucracy. Not even the highest court in the land.
“The Supreme Court was always the most cloistered governmental institution in America — the one where wisdom and precedent and reverence for our great constitutional tradition outweighed everything else. If there was something sacred that remained, this was it.”
But nothing about the American heritage is sacred to the progressive liberals who eagerly condemn this country and its democratic principles as the morally illegitimate product of our society’s history of “systemic racism.”
HOW ROE UNDERMINES DEMOCRACY
If the underlying principle behind Roe v. Wade is allowed by the Supreme Court to continue to stand as established law, it means the end of our society’s ability to impose absolute values of right and wrong through democratically passed state laws upon its citizens. Instead, it substitutes a constantly shifting subjective moral and ethical standard in which each self-defined identity group seeks to impose its practices and preferences upon the others in a zero-sum game of political power.
If left to continue, this process will eventually destroy the fabric and unity of American society, as each new liberal identity group asserts its claim to victimhood status, as well as the right to demand reparations and special privileges from the rest of American society to redress both real and imagined historic injustices.
If Alito and his fellow conservative Supreme Court justices do persevere in doing away with the Roe v. Wade precedent, they will have struck an important blow on behalf of the rightful interpretation of the US Constitution.
It would go down in American legal history as one of the Supreme Court’s most consequential reversals of long-established precedent. It would be comparable to the landmark 1954 Brown v. Board of Education school desegregation ruling, which overturned the ruling six decades earlier in the Plessy v. Ferguson decision that judged “separate but equal” segregated facilities for black people to be constitutional.
Doing away with the pernicious moral relativism of Roe v. Wade will also go a long way towards reinforcing the rule of law in this country. It would also renew public respect for the fundamental institutions and principles of American government, including a politically independent federal judiciary and Supreme Court, as the Founding Fathers had intended.
A FIRST STEP TO RESTORE MORALITY IN AMERICAN SOCIETY
Doing away with the Roe v. Wade mentality would enable democratically-elected state governments to establish their own legal standards, in accordance with the expressed will of their people. It would help make it possible for people of good conscience everywhere to once again live their lives in accordance with their religious or ethical beliefs, without any need for apology to those who disagree with them.
Finally, overturning Roe v. Wade would be an important first step towards restoring America’s traditionally strong moral values, restoring respect for individual beliefs and the right to publicly express them, and rebuilding the faith of the American people in this country’s founding democratic principles and aspirations as expressed in the Declaration of Independence and the Bill of Rights.