Careful thought is needed about an alleged leak of a Supreme Court opinion on abortion (update)

If this is a real disclosure of a proposed opinion from the Supreme Court, the act of leaking for influence is a symptom of the further deterioration of the federal court system into blatant politics, both in the selection of federal judges and in some of their rulings and opinions. Furthermore, the judge nominated and confirmed this year, Katanji Brown Jackson, who is to take the place of Stephen Breyer when he retires, has openly advocated for lesser sentences for persons found guilty of the crime of child pornography, which can include the rape and physical brutalization of children and babies.

The story may quickly disappear from the news cycle and have no further effect, or it may prime the pump for more discord when the actual decision is delivered.

If the Roe vs. Wade and Planned Parenthood vs. Casey opinions and decisions are overturned, the effect will be to put the issue of abortion into the legislature of each state, which can then decide its legal status.

Update (3 May 2022): The Supreme Court issued a statement that the draft opinion that was disclosed is authentic, and Chief Judge John Roberts added that an investigation into the source of the leak is going to be done–

https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_05-03-22

[1] http://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

[2] http://www.supremecourt.gov/publicinfo/press/Letter_to_President_January-27-2022.pdf

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31 Responses to Careful thought is needed about an alleged leak of a Supreme Court opinion on abortion (update)

  1. Fourth and Long says:

    The story as I read it in the Daily Terrorgraph said that Chief Justice Roberts’ decision or vote was either unknown or not revealed. That tells me of two possibilities at minimum:

    1) He opposed overturning Roe.

    2) The Telegraph editors know that Roberts was specifically chosen because his name ends in “s” and this presents insurmountable problems of style when choosing to use either Roberts’s or Roberts’ to indicate possession. They started making jokes about which of the justices was possessed – Barrett, Kavanaugh, Alito, Thomas or Sotomayor or the other lady (sorry, carrier of double X sex chromosome) whose name I forget. Someone said “Well, going by name only, you’d think Breyer possessed, no?” That was too much and they never got around to noticing that homophonically speaking, “Roberts” begins with “Ro” which in homophone land equates to “Roe,” which might indicate personal bias toward the opinion of the one of the original petitioners, namy Roe, whose name itself suspiciously can mean “eggs,” especially if something fishy is going on.

    Therefore I conclude that Chief Justice Roberts may have recused himself, mainly because he’s too smart to back a dog in this fight.

  2. plantman says:

    The Democrats need an excuse to explain why their demoralized voters voted en masse in the (upcoming) midterms. They know “open borders”, “war with Russia” and “defund the police” is not going to get the vote out. That’s why this abortion-thing has magically reappeared just when they need it most.

    I think it’s all a set-up for another stolen election. The overwhelming support for loser Democrats will be explained as support for “Roe” which– as we all know– is the only thing Dems believe in.

    • Fourth and Long says:

      $200 and pass Go free. Overly compulsive son of a college professor I thought it had something to do with the fact that demographics trend lines indicate Whites are soon no longer to be the majority ethnic group. Then I realized, wait, the ways things are actually trending, you are: a) whatever ethnic group we say you are, buddy, Or b) you can self identify as a toad-eating hermaphrodite of any of 28 colors on any day of any week you like Or c) sorry it is illegal of us to collect that data, Citizen K but — then I remembered US Blues by Jerry Garcia:

      I’m Uncle Sam, that’s who I am; Been hidin’ out in a rock and roll band.
      Shake the hand that shook the hand of P.T. Barnum and Charlie Chan.

      What a great and amazing country America is!

      And how incredible and humbling it is that this is as you say almost certainly a lowdown, unclean and fairly nerdy Democratic party trick.

  3. Powderfinger1 says:

    This wont be the only one either, expect more as November gets closer.

  4. Fred says:

    And just like that the nation press narrative changed. Coincidental to an election in Ohio (gas prices as high as $4.50 a gallon per an NPR news story this morning), inflation over 10%, a major recession looming, illegals crossing the border at increasing rates, and public desire for entanglements in Ukraine’s war even lower than Biden’s popularity; and only a week after Obama spoke of the need for censorship at Stanford (which was followed days later by DHS announced creation of what is euphemisticly called a “ministry of truth”).

  5. James Nawrocki says:

    My personal opinion is that the overturning of Roe v. Wade will be the modern day version of Dred Scott v. Sandford. There will be some who celebrate the occasion (briefly), but it will only hasten the day when there is a call for a new constitutional settlement.

    • Fred says:

      James,

      You mean the democrats are going to seceed from the union rather than just pass laws in the states the run?

      • James Nawrocki says:

        I think that a woman’s right to control her own body is an issue that cuts across all state lines. I understand that the wisdom of our Founding Fathers was to create a federal system with certain anti-majoritarian checks, that once every 100 years or so, gave us a president who had a majority of electoral votes, but a minority of the popular votes. But this has occurred twice in the last 22 years and was in fact the Trump strategy in 2020. I just do not a political system is stable when public and intimate personal issues are consistently decided by presidents who do not command a majority of popular votes, a Senate whose majority is elected by a minority of all US voters, and a Supreme Court whose majority is a creation of the prior 2 anti-majoritarian biases. At some point something has to give. In Great Britain it was the Reform Act of 1832 to eliminate Rotten or Pocket Boroughs to reform unrepresentative influence. What form it will take in the US I cannot predict. Only that there will be a sustained call for a new constitutional settlement.

        • Pat Lang says:

          JN
          The states created the union, not the other way around. The UK is a small country compared to the US. There is no such thing as “settled law. Many previous precedents have been overturned. A woman has an absolute right to kill her unborn child? How absurd! BB Joe did not think so in the past.

        • Fred says:

          James,

          A man’s right to control his own body cuts across all state lines. No mandatory vax. Florida outlawed that corporate ability. The pro abortion movement is free to legislate abortion availability in every state they lead, just like before men in black robs usurped that ability when they decided Roe.

        • Bill Roche says:

          James the US Constitution allows for change per Article V. You could eliminate the Senate, Electoral College, deny Representatives to states like R.I., Wy, and Vt. The result would be a govt reflecting the wishes of citizens living in the 25 (?) largest cities w/o representation to anyone else. The U.S. faced this problem in 1787. If 235 years later you’re unsatisfied you have recourse but 75% of states must agree. I constantly wonder why those unhappy w/t constitution don’t have campaigns for amendment. Which little states would say no? Fourteen state legislatures would kill any changes. I can think of 14 who would say “no to rule by NYC, LA, Chic, BOS, etc. The founders knew the ’87 document would never stand w/o change. Why haven’t the dissatisfied begun efforts to change the document per Article V?

  6. Sam says:

    Our corrupt parties are opposite where we’d expect them based on rhetoric. The RNC can’t afford for #RoeVWade to be overturned. And the DNC must thrill at the prospect. Don’t be fooled. voters are an annoyance that must be activated to win power which the parties then monetize.

    https://twitter.com/bretweinstein/status/1521569492320411648?s=21

    Power at any cost is the mantra. All norms are subservient to this goal. Ultimately, we voting citizens are responsible if we continue to remain distracted by the emergency du jour. Tribalism is precisely what those in power seek to divide and distract from the growing authoritarianism and the looting of future generations while at the same time impoverishing the bottom 80%.

  7. Babeltuap says:

    I would fix voter integrity using bullet proof tech first. Start with something simple then move on to letting AI balance the budget and creating a robust middle class. Once that happens abortion will not be an issue. I guarantee it.

    • Stefan says:

      There is no such thing as “bullet proof tech”. Anyone who works in a tech related field will tell you this.

  8. Jose says:

    Does anyone know what percentage of Blacks and Hispanics are pro-Life?

    Dems are playing with fire…

  9. KjHeart says:

    if anyone is all bothered by the possible and now confirmed likelihood of overturning Roe V Wade – don’t be

    This all goes back to the states;

    For USA residents – if your state already has abortion laws on the books then not much will change… I am pretty certain that ALL US states and territories have some defined abortion laws so NOT MUCH WILL CHANGE state by state. If anything, this leak gives a heads up for any state that needs to further define their own laws before the official SCOTUS decision.

    I have read a lot of legal opinions about Roe V Wade over the years and it really was a poorly decided case. It was the break up of a relationship and the woman was pregnant. She sought an abortion and he wanted the child to be born (oversimplification for brevity sake). The court’s decisions all the way to the US Supreme Court really made a mess of subsequent US Family Court’s and child custody cases, and it is in the area of child custody and parent custody rights that the states may need to make legal clarifications (though many states have already).

    Here are a couple of key issues that Roe V Wade made a mess of (IMO)

    – The Roe v Wade Case eviscerated men’s rights in custody battles – today the majority of divorced men that pay child support have limited or no custodial or visitation rights (the decision underscored ‘men pay and get no decision making authority’)

    -Roe v Wade reduced children to being ‘chattel’ or ‘property’ of a relationship – this led to some horrible child custody battles in which children of a relationship were divided among the splitting couple like possessions. *

    *I have to look it up again – a famous case (on the East Coast USA) was argued a few years after the Roe v Wade decision and identical twin girls were separated as part of a divorce – one to each parent. What followed were other, similar, court decisions in which twins and siblings were separated child custody battles.

    There are other legal and real harms that resulted from Roe v Wade – these are two that stand out to me

    I had the opportunity (years ago) speak with an adult woman (who had been one of two female identical twins separated through divorcing parents custody battle) she spoke of her close relationship with her twin sister prior to the forced separation; of her limited (nearly non existent) contact with her sibling after the forced separation (the divorced parents moved to separate states in years prior to the availability of the internet); and, sadly, she told of the eventual suicide of her twin sister. The judge in the decision referenced Roe v Wade in the ruling.

    My biggest difficulty with Roe v Wade was the glaring silence on the question of “what are the child’s rights in this matter?” Keep in mind that Norma McCorvey- the woman seeking abortion in Roe v Wade – gave birth by the time the case was heard in the US Supreme Court. There was an autonomous, living, breathing child to consider.

    The Family Law Courts in the USA have learned the hard way that separating twins (or any siblings) is usually a bad idea and have slowly corrected the judicial path for children that are the subjects of a custody battle. More could be achieved in that arena.

    Men getting visitation and custodial rights needs improvement – currently it is less than 20%

    https://www.divorcelawyersformen.com/the-true-facts-of-child-custody-for-men/

    Other than SCOTUS needing to get clarity on their issue with leaks, the overturning Roe v Wade is not going to be much more than a blip on the radar unless people fall for the hype.

    kj

    an afterthought – if abortion law is no longer dictated by the federal government then that series of clinics (that finances political agendas so frequently) will have to go the the states for funding… THAT might be what they are really screaming about. Hmmmm…

    • JK/AR says:

      As well alongside KjHeart your sober analysis this bit from Mr. Willman’s:

      “You can think of what the possibilities might be. The most ominous is that the story is agitating propaganda (agitprop), to stir up more conflict within our society and culture. Discord and violence domestically are the handmaiden of totalitarianism.”

      *At the risk of sounding like Jen Psaki

      https://malcolmpollack.com/2022/05/03/live-by-the-court-die-by-the-court/

      (* Ms. Psaki’s shopworn Let’s circle back. [Whether in its implication ‘circle back to some previous point’ – or – ‘circle down the toilet’ – I feel I’m inadequate to conclude.)

  10. Stefan says:

    The GOP could find out that over turning Roe v Wade to be a Pyrrhic victory. It has been a motivating factor for decades for GOP voters even though the general US population supports abortion rights, of one sort or another, in large numbers. I know some within the GOP really wanted to overturn Roe, for others I think it was more useful as a tool to get voters into the booths.

    The question remains is, if Roe is overturned, will it result in a long term drop off in GOP voting. Will it cause women to flee the GOP in larger numbers than they already are? Will it give the Dems a boost in their turn out?

    I think the GOP leadership, not ideologically driven by religious doctrine, is thinking “beware what you ask for, you might just get it”. If overturned it could be a defining moment in US politics, but given the general trend in US politics, it might not be the moment the GOP leadership wants.

    • Fred says:

      Stefan,

      The GOP is not overturning the court decision. The GOP leadership, not the old foggies trotted out by the press, are running multiple state legislatures and serving as governors in even more states. A lot of women voted for them, such as in Virginia. I think you have the rest of your analysis backwards as well.

      Every time a ‘woman’, or anyone who “identifies as a woman”, or even those Judge Ketanji Jackson can’t identify as a women (or a man, she not being a biologist), fills up the gas tank she knows what the Dems have done to her budget. She gets an extra dozen helpings of that when she sees egg prices, then there’s milk (not the soy/almond crap either), fish, meat, and even the (for now) readily available toilet paper prices. Her friends who vacationed in Florida came back reporting on fun and sun, not dead bodies stacked like firewood along the beaches because of Covid; St. Fauci and the fourth booster cheerleaders (not required for Newsome, Whitmer, Pelosi or the rest of the Doterage Democratic leaders) notwithstanding. Shocking how the narrative driven world changed, wasn’t it?

      • Stefan says:

        The GOP’s cause celeb, for years, has been changing the facts on the ground so abortion could be over-turned. It is a decades long project. Why deny it now? It is a huge victory, if it turns out to be true.

        The bigger question is what impact will this have on electoral politics. Keeping abortion legal is popular with Americans. There is not real support for any outright ban on abortion in the American public. The anti abortion right doesn’t control anywhere near a majority in American politics. Yes, women still vote for the GOP, although that number is going down. What would a decision knocking down Roe do to this? All it would take is a few percentage points of GOP women move to voting Dems to change the electoral outlook dramatically.

        I don’t think many people expected this because many of the justices who look to be signing onto this have said, under oath, that Roe was settled law. So women, and others, could vote GOP and think they were not voting for Roe to be dismantled. If Roe is knocked down all bets are off.

        Indeed the GOP, through a well thought out and planned project, might be knocking down Roe. I don’t see why not claim what is an obvious a seismic GOP victory. Question is, did they factor in the blow back and the consequences to the GOP itself and wider electoral politics?

        It is my opinion that both the Dems and the GOP have been destroyed by identity politics and Americans done a grave disservice by both parties being taken over by loud mouth special interest groups.

        Never thought I’d say I miss small government GOP and working class Dem politics, but I do. The special interests in both parties have effectively destroyed both parties and America is poorer for it.

        • Fred says:

          Stefan,

          ” changing the facts on the ground”

          They did not change the fact that life begins at conception.

          “What would a decision knocking down Roe do to this? ”

          Return the issue to the states for their legislatures to decide. Think of the landslide victories to be achieved across the Republic when the Democrats run on being pro abortion.

          • Stefan says:

            That is your opinion. Given that the majority of Americans support abortion rights, the majority of Americans do not agree with you on this matter.

            Again, as most Americans are pro abortion, being pro abortion will not cause landslide results anywhere. Whereas a few percentage points of GOP women either voting Dem or staying at home most certainly would change things.

            I am not a fan of abortion, I don’t believe in it myself. However, I dislike the complete stranglehold that special interest groups have on BOTH parties.

            Time for both parties to neuter the outsized influence that the special interest groups have. A majority of Americans support abortion rights. Fact. A majority of Americans do not care to fight for the ability of a person born as a man to be able to use female bathrooms. Fact.

            The special interest groups on both side are completely ridiculous and tearing our nation apart.

          • Fred says:

            Stefan,

            “That is your opinion.” Good luck with that rationalization. Now the left will have an issue to run on, rather than the economy, the war, and Covid.

  11. Eric Newhill says:

    The Democrats know they are projected to be slaughtered in the midterms. So this is one of the monsters they draw on the wall to scare all of the ninnies into voting for them again against their best interest. Simple as that.

  12. Deap says:

    Women still have the right to choose. Either a tubal ligation …..or to kill their baby.

    If a potential pregnancy will be “unwanted or unplanned” and one still wishes to engage in procreative acts, then one has the fundamental duty to avoid later infanticide. Micro-surgery ligation and later reattachment is far more viable and accessible, than assuming only the termination of another’s life is the only option.

    It remains a woman’s body and her fully independent choice to have a tubal ligation. The baby’s life is taken out of this equation.

    Plus this case is not really about the right to infanticide. It is about the Supreme Court ignoring the express language of the US Constitution, and just making fundamental constitutional rights up to soothe the then current demands of the 1960’s social revolution: free love – free abortions- freedom from 18 years of child support.

    There is no express right to privacy in the US Constitution used to support the Roe vs Wade infanticide, Instead they created a “penumbra of rights” – a shadow right, concocted from various other express protections that are set out in the Constitution. That was the first misstep. Then to use this fake “penumbra” of first impression to justify infanticide as a constitutional right simply abused the express protections of our written agreement with each other.

    The Constitution provides an amendment process. When the will of the people is strong enough, as we have seen multiple times in the past, establishing a federal right to infanticide on demand can therefore arise from a newly express constitutional amendment.

    The Roe v Wade court rode in on a hobby horse and it should get kicked out from underneath them. Ride in on a steed, not a toy if you want to federally sanction infanticide.

    States can carve out their own limits and exceptions to infanticide according to the will of each state. But nothing in the US Constitution at this time can allow for infanticide to be the law of the land.

    • Bill Roche says:

      I agree w/you but that would acknowledge that our govt plan intended power sharing. The gist of the progressive (socialist) movement was to remove states role in government w/o constitutional amendment. Citizens of individual states may have a fundamental right to abortion w/i their state but there is no such right written into the constitution. That is what Bork was saying when he was “Borked” by paragons of morality and probity, Biden and Kennedy. To rtn abortion to the states is to rtn to power sharing. That’s too great a loss for socialists to bear. The idea of abortion is incidental to their resistance.

  13. Degringolade says:

    Colonel:
    I suppose that history does repeat itself. I would write more about this, but the URL says pretty much everything.

    https://www.smithsonianmag.com/smart-news/the-original-roe-v-wade-ruling-was-leaked-to-the-press-too-180980016/

    I cringe a little bit if Roe-v-Wade is in fact overturned. I think that it is a crappy ruling, right up there with Dred Scott. But the pussy hats and riots here in Portland are going to be annoying. Think a cross between the “resistance” and ANTIFA.

  14. Stefan says:

    Fred,

    It also happens to be the opinion of the majority of Americans and voting Americans. Running your campaign 100% on the wrong side of public opinion isn’t a winning strategy. Until now it has been an abstract. If Roe is shot down, it is no longer abstract. Abortion, as a sole issue, is a big time loser for the GOP. Plain and simple.

    I, personally, am tired of fringe groups running both parties because they have deep pockets and loud mouths. It goes equally for the religious right as it does for the extreme left.

    Deap,

    The same rational that Roe was based on is also the same rational that made interracial marriages legal and contraception legal. Neither of these are in the Constitution. If Roe is shot down it potentially puts both of those back into play as well. Sad fact is, there are segments of the US that would still like to ban interracial marriage and contraception. Gay marriage? Same for that as well. Many, many things could be up for play again and potentially will ALWAYS be up for play depending on who is on court.

    Without some sort of respect for precedent, which all of the recent SCOTUS nominees have sworn under oath to respect, our judicial system becomes a mockery that will sway whichever way the most current election or two go.

    • Fred says:

      Stefan,

      “Abortion, as a sole issue, is a big time loser for the GOP. Plain and simple.”

      Landslide for the Democrats in November and in 2024 too. Good luck.

      “..precedent, which all of the recent SCOTUS nominees have sworn under oath to respect,”

      They did? Where in the oath does it mention “precedent”? Never mind, run on impeaching those judges that violated that too.

      “Gay marriage?”

      The precedent for marriage being only between a man and a woman predates the Constitution. Why oh why didn’t the justices who ‘swore’ to respect precedent not do so in this regard?

  15. Bill Roche says:

    Majority opinions, political losing issues for this or that party, are not supposed to constitutional issues. Article V is for that. If all of the people in all of the states agree, the federal constitution can change. As to precedent, I understand your point of view but there is no requirement for the “not so supreme” judges to honor precedent. We are back to Article V which was meant to be a pain in the ass. Advocates of “living constitutions”, “penumbras of rights'”, and a “politically representative document” have reduced its power. The federal constitution does not and can not deny rights to state citizens that exceed federal individual rights. State legislatures can find all the penumbras they want but, oops, then they would have to alter their constitutions. Pity, work for them.

  16. Deap says:

    Please substitute infanticide, for the more detached term “abortion”.

    Which is why this case is unique, and cannot be compared to other social interaction rulings by states or even under federal jurisdiction – they did not carry the punishment of immediate death in their outcomes. Various capital punishment laws in each state is probably the better comparison.

    Which demonstrates yet again the rampant hypocrisy of California – ban capitol punishment but support becoming an infanticide tourism state.

    There are two predicates fundamental to this issue: (1) life begins at conception; (2) at no time is a baby merely a disposable clump of undifferentiated cells. If one can establish a bright line that ignores these two fundamentals first, only then can we the people craft infanticide rights.

    That said, the real issue is who must carry the burden for pregnancy prevention; not who has the right to infanticide. Why won’t men or women inconvenience themselves to undertake pregnancy prevention, but are quite willing to take another person’s life?

    Yeah, yeah, but what about rape and the health of the mother – those are down stream arguments, but only after the principle of the right to life and when life begins is established first.

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