A decision based on 'privacy' leads to the end of privacy at the United States Supreme Court
Justice Harry Blackmun's opinion in Roe v. Wade, declaring abortion to be a right under the Constitution, was derived from the insertion of a right to privacy under the Constitution. Disclosure in Politico of a draft opinion to upend the Blackmun ruling by Justice Samuel Alito, Jr. indicates that the privacy in Supreme Court decision-making — indeed, the very sanctity of the High Court — is at an end, torn down by the inexcusable entry of domestic politics into the judicial process.
The Politico article assumes the authenticity of the opinion attributed to Justice Alito. The fact that he wrote the decision strongly suggests that Chief Justice John Roberts is not included in the alleged majority decision to reverse Roe. It seems more likely than not that had the chief justice agreed to the reversal, he would have assigned the opinion to himself. That Justice Alito wrote the draft overturning Roe indicates that with the chief in the minority, the senior justice in the minority, Justice Clarence Thomas, assigned the opinion to Justice Alito.
Speculation on the leaker has fallen on one of the 36 law clerks to the justices. This, for example, is the view of Brian Fallon, a former press secretary to Hillary Clinton. Democrats, as reported by Politico, which first posted the leak, are hoping that it will galvanize the Democrat base to block Republican gains in November's midterm elections.
Concerning Fallon's speculation, would a mere law assistant to a Supreme Court justice dare to take the extraordinary step of piercing the Court's sanctity? If discovered, it would end a promising legal career. In addition to the 36 law clerks, there are eight other individuals said to have seen the Alito draft: Justice Alito's eight colleagues on the Court. Would one these eight be the likely leaker?
There is one of these eight who will step down when this term of the Court ends: Justice Stephen Breyer, who is to be replaced by Judge Ketanji Brown Jackson. It is generally conceded that Justice Breyer was pressured to retire to give President Biden the opportunity to make at least one appointment to the Court.
Who would be more likely to disclose a draft opinion prematurely — and for political impact — than a justice who was motivated to step down from the Court for reasons of politics?
That the leak has set off a political firestorm is not surprising — but isn't it more likely than not that such a firestorm would have been ignited had a 5-4 reversal of Roe v. Wade been handed down in the normal course of the proceedings of the Court? Wouldn't Democrats have seen a Roe reversal as a call to political arms, in terms of the November elections and court-packing? Of course, but the leak of the draft has given the left the hope that the reversal can, itself, be reversed — a change that, arguably, would not displease Justice Breyer and his three liberal colleagues.
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