Dobbs Draft Changes Everything

Some, most notably those who are either law nerds or untroubled by the substance, will raise the shock that a draft opinion of the Supreme Court of the United States was leaked to Politico. And it is, without a doubt, shocking. Because it violated the trust of chambers. Because it likely reflects someone’s view that leaking this draft was more important than the sanctity of confidence. Maybe a law clerk. Maybe staff. We may never know who did it, which is worthy of discussion.

But it was done, and now the draft has been made public. This changes everything.

Before, the Republicans were poised to take back Congress. With this leak, that may not happen, as this will outrage moderates, motivate progressives to vote and change the entire dynamic of the midterms. This is the worst nightmare of fevered dreams of the left, and provides demonstrable evidence that the worst fears of a hard right reinvention of America could happen.

While the rationale behind Roe v. Wade has always been suspect, it remains that abortion has been a constitutional right since 1973, for better or worse. While it’s been extremely controversial ever since, an America has developed since then that relies on the holding of the Supreme Court and reliance that a right established will remain established. In the 50 years since the right was held, generations have understood it to be a right.

Perhaps more importantly, the legitimacy of the Least Dangerous Branch, the branch whose only tool is their acceptance by the other two branches and the public as the final word on constitutionality, depends on the public’s acceptance of the Supreme Court’s decisions and faith in the integrity of the Court. This draft burns this to the ground to undo a 50-year-old decision. Regardless of how you feel about abortion as a policy choice, or Roe v. Wade as an opinion, it was a done deal. Undoing an already extant constitutional right is unthinkable.

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 abortion issue, Roe and Casey have enflamed debate and deepened division.

The opinion was drafted by Justice Sam Alito, of course, and the information provided by Politico is that it has the votes of Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Notably, the three Trump-nominated justices, if this is accurate, are doing exactly as their detractors anticipated they would do. That there would be a rightward swing in the Court was fairly obvious, but that didn’t necessarily mean these justices would be willing to blow the Court up.

It may be, as Politico notes, that this draft will not end up as now written, or even as the majority decision of the Supreme Court. It is, after all, a draft.

Under longstanding court procedures, justices hold preliminary votes on cases shortly after argument and assign a member of the majority to write a draft of the court’s opinion. The draft is often amended in consultation with other justices, and in some cases the justices change their votes altogether, creating the possibility that the current alignment on Dobbs v. Jackson Women’s Health Organization could change.

It’s possible that the justices will change their votes, but that seems very unlikely. They may quibble over language, but there is little doubt they have given great thought to their positions in Dobbs and, once committed to it, will not change.

The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.

If the question is whether it was rooted in this nation’s history and traditions since the founding, then this would be somewhat correct, just as slavery was deeply rooted since the founding. But after a right has been held to exist, and has been exercised for 50 years, and has become a foundational, if controversial, tenet of our national existence, it is very much deeply rooted in our history and traditions. Or more to the point, it is a constitutional right because the Supreme Court said so. If the Court is to be trusted, then it must stand by what it holds and not shift with the whims of new justices to give and take rights.

Assuming this draft ultimately becomes the holding, the legality of abortions will become a state issue. Some states will outlaw it and criminalize it. Other states will protect it. It’s not that abortion will disappear entirely, although for those women who live in states that prohibit abortion, they may well be unable to afford access to it in another state. Those are the women who had a right because the Supreme Court said so, and now don’t, because a different Supreme Court said so.

I expected the Supreme Court to return a modest decision in Dobbs, one that allowed states more latitude to regulate, but upheld the basic right as established in Roe and Casey, not because the Constitution says abortion is a right, not because Roe was a well-reasoned decision, and not because the five justices approve of abortion, but because stare decisis demands it. To do otherwise would wreak havoc in American society. To do otherwise is to confirm the worst fears of a great many Americans who are hardly woke, but are not at all extreme conservatives.

Some predicted this will happen, screaming about how the sky will fall with a shocking certainty. I cautioned to wait and see, and that no one has the ability to see into the future. This was because I did not believe the Supreme Court would be so destructive, so ruinous of its own institutional integrity, so callous in taking away a constitutional right once given, as to reach this decision. And yet, here it is, and I was wrong. Even though it’s only a draft, and despite all the bad things to be said about the leaker, the damage has now been done.

This changes everything. The ramifications of this will ripple through our politics, governance and public psyche in unimaginable ways. This changes everything.

46 thoughts on “Dobbs Draft Changes Everything

  1. Tom

    Do you think the long term consequences would be different if there were no leak and this was just the opinion released in a month?

    1. Miles

      If this was the actual decision, it would do whatever it would do. But it being a leak of a draft means it’s not the actual decision even though it will have the impact. Since your only focus is on the leak and not the decision itself, the answer to your speculation is “maybe” because no one knows whether your hypo will come to pass.

  2. Turk

    If stare decisis ends up in the toilet, I look forward to a future SCOTUS returning the words “well regulated militia” to the Bill of Rights.

    1. Hal

      I’m as fervent a supporter of the 2nd Amendment as can be, and have read a great deal on the issue of the RKBA, but I’ve no idea what you are suggesting here.

      This decision is catastrophic, “sickitatinng and disgustifying”. The court’s reputation may never recover.

      Combined w/ the distrust that has grown out of Il Douche’s claims that the election was stolen, and the widespread distrust of police, the implications for our democracy are almost unimaginably grave. If we, as a people, can’t trust the courts, the police, or that our votes count… what hope is there?

      1. SHG Post author

        This isn’t a post about the Second Amendment. Turk’s inability to focus does not mean you have to follow him down the rabbit hole.

        1. Turk

          If my memory is accurate, Sotomayor discussed this during oral argument. As you note, there are implications to pissing all over stare decicis. And this is one.

          1. Miles

            Are you really that dense, Turk, that you don’t grasp how you’ve just tried to hijack the post to make it about 2A like some childish tit for tat crap on twitter? What is wrong with you?

            1. Turk

              Well, Miles, I could have suggested that marriage equality and contraception would also be fair game if the court dumps on stare decicis.

              I used 2A because of the whole goose/gander thing. And that Sotomayor brought it up.

            2. SHG Post author

              You really don’t get it. Fine, you get the last word and maybe now we can get back to our regularly scheduled program.

  3. MollyG

    I thought the same thing also last night, but now not so much. The decision was always going to be released before the midterms and it was widely expected that Roe would be overturned. Some speculated that it would not be such a strong decision, but those are details. I think the medium and long term consequences will be nil.

  4. Bryan Burroughs

    I’d posit that the damage we will see now was done with Roe itself. It’s almost universally recognized as bad law, and is easily in the top 5 in the pantheon of bad Supreme Court decisions. It’s a festering wound that’s been eating at the nation since it was delivered, with its detractors almost willing to nuke the Constitution to get rid of it (looking at you, Texas). And it’s law whose rationale that we desperately try not to apply anywhere else.

    I’m not sure if the justices are being sincere in this or not, but they are faced with no good options. Nuke an established but wholly manufactured right, or let incredibly bad law stand. The Court had a better chance to do the right thing in Casey, but they just punted.

    To the extent that it confirms the worst fears of the unduly passionate, they were never going to believe otherwise. The only thing that remains to be seen is whether this and future courts will restrain themselves. Activists on both sides will push for them not to, now that the door is seemingly open. But let’s be honest, the Warren and Burger courts had already kicked it wide open. This decision is just the aftermath of those courts.

    1. SHG Post author

      Then you’ll take comfort in believing the Supreme Court rules correctly as the consequences unfold. I hope it was worth it.

    2. Paleo

      Almost willing? Seems to me you can leave off the “almost”. The travel and assistance bans prohibiting people from going to another state (or helping someone to do so) to engage in legal activity in that state is unconstitutional, isn’t it?

      I’m a Texan. Could the state prohibit me from, say, vacationing in Colorado so I could smoke weed?

      I think I’m with Mr Greenfield. I hate abortion but I don’t like the concept of taking broadly accepted rights away.

  5. David Meyer-Lindenberg

    [Disclaimer: I’m not giving an opinion on abortion or the political desirability of overturning Roe.]

    I hate to be flip, but I’d never encountered the “50-year-old decisions stand at all costs” rule of stare decisis before this post. Should SCOTUS undo Brandenburg and go back to Schenck, given that that delineation of a constitutional right also took 50 years to change?

    1. SHG Post author

      In the draft, Alito tries to make a similar point with reversing Plessy in Brown v. Board. But his analogy, and yours, have what I consider to be a critical distinction: Here, the Court is eliminating a constitutional right conferred. That wasn’t the case in Plessy or Brandenburg, where the Court addressed the parameters of the constitutional right, and in fact expanded the right.

      Once you have a right to do something, eliminating it is of an entirely different magnitude than expanding it or defining its paremeters.

      1. B. McLeod

        The coin has two sides, as Roe can be seen as restricting the rights of states to regulate abortion, and reversal of Roe would be restoring that right.

          1. B. McLeod

            But of course, the states are organizations of people, and some of them apparently are people who can’t feel safe while little fetuses are being harmed.

      2. David Meyer-Lindenberg

        I don’t think that’s a principled distinction. You and I are liberals, and so we’re used to the Constitution backing up our policy preferences, which often involve strong negative rights like that to an abortion. But just because fidelity to the Constitution typically means recognizing generously delineated rights doesn’t mean that any potential right to come along is in fact protected, or protected in the way its proponents want it to be. In particular, fidelity to the Constitution as written demands that SCOTUS not conjure up a right to abortion under the flimsy mantle of the Fourteenth Amendment.

        For you, whether a 50-year-old precedent on constitutional rights can be overturned depends on the magnitude of the proposed change, and whether the change goes in the (liberal) direction you prefer. But that’s a dangerous game, one that people like Adrian Vermeule can play, too. Sometimes – if much less frequently than for the Vermeules of the world – the arrow doesn’t point in the direction we want it to, even though the original decision is constitutionally unmoored. We’re just not as accustomed to it, because the Constitution is a liberal document.

        1. Keith

          14 isn’t the only one there, ya know.

          To Scott’s point, “It didn’t need to be this way”, is perhaps the worst part of the Alito draft.

          While there were an infinite number of alternatives, even the Justice Goldberg concurrence in Griswold (where he found a 9th amendment right to privacy) would have provided an alternative framework (and given long term help to other civil rights, such as the one Turk mentions above) without blowing up stare decicis. This seems wholly unnecessary.

          I once joked that one side spent enough money keeping abortion legal that it would be cheaper to relocate all the women to NY and put them up in the Waldorf while having Doctors come like room service. Maybe now, it’s just a viable alternative.

      3. Matt

        So, do you think the Court was wrong to overrule Lochner and eliminate the right to freedom to contract it recognized?

        I agree that it’s a different thing to overrule a case establishing a right than overruling a case that narrows a right, but it can’t be something that is completely off the table.

          1. Matt

            How isn’t it analogous? The Court recognized a right and then later overruled that case and eliminated the right. You might not agree that it was actually a right, but that’s exactly what the opponents of Roe believe.

            While I agreed that it’s a different thing to eliminate a right and principles of state decides should weigh heavily against it due to the reliance interest that generally accompanies the people’s expectation of having such a right, it’s not something that can never be done.

  6. Dan

    Stare Decisis does not demand that the court cling tenaciously to a manifestly wrong decision–they have rightly reversed themselves in the past, and doubtless will do so again. You yourself have written that Roe is bad law, and it is–it invented out of whole cloth a “fundamental constitutional right” for no reason other than that the court at the time wanted it to be there.

    This decision, if adopted, will return the issue to where it always belonged–the legislatures of the various states. If Planned Parenthood et al are telling the truth that there’s overwhelming public support for unrestricted abortion on demand, they shouldn’t have anything to worry about. But they don’t have the support they claim, they know it, and that’s why they’re scared.

    1. phv3773

      There are some in Congress who think they can overrule the states. I’ve wondered if they can actually do that, or if such a law would be struck down by SCOTUS.

      More on point, the gutting of the Voting Rights Act was also a repudiation of a prior court, and generated similar discussion about politicizing the Court.

      1. Mike V.

        “There are some in Congress who think they can overrule the states.”

        And would very much like to. But from what I’ve read, there aren’t 50 votes in the Senate now for an abortion bill; and it seems likely there wouldn’t be a majority in either House in the next Congress if the expected Republican wave happens in November. And there is a part of me that thinks the leak was to mobilize the left to try to blunt that wave.

    2. Grant

      Stare decisis demands that the court cling tenaciously to a manifestly wrong decision* because stare decisis means following precedent, that is, the decision.

      * ‘wrong decision’ used here because I am not fighting the hypothetical.

      1. Dan

        My point is that stare decisis is not an absolute mandate. It is a valid principle, for many good reasons, and I can accept that it may, in some cases, outweigh “getting it right.” But an absolute requirement it isn’t, as the court has rightly recognized at many times in the past.

        Our host has stated himself that Roe is bad law. He and I disagree on whether it’s good policy (which really comes down to the question–rarely engaged by the pro-abortion side–of whether that clump of cells in the woman’s uterus is part of her body, or a distinct human body), but there’s no real argument to be made that the Roe court had any kind of sound legal basis for its decision. They wanted it to be legal, so they made it legal. And if that was valid then, it’s no less valid now–if the Roe court was right to enshrine its policy preferences in law, it’s no less right for the Dobbs court to do the same. And if the Roe court was wrong to enshrine its policy preferences in law, despite a complete lack of Constitutional basis, it’s also right for the Dobbs court to overturn that error. In neither case can a principled argument be made that it’s wrong for the Dobbs court to overturn the Roe court, unless stare decisis means the court may never, under any circumstances, overrule itself–and it’s never meant that.

  7. B. McLeod

    This is just another step down the road of using the court as a political institution to legislate change. It is the same double-edged sword it has always been, and now the pendulum has swung from redefining “marriage” to (possibly) striking down the court-created, federal abortion right. Just another act in an ongoing stage play.

  8. MarkHu

    The court is going to leave it with the electorate, and the electorate in pretty much every single state supports abortion. So this shouldnt be a problem.

    The problem is not that the court put it back with the people, its that the people dont get what they want.

  9. abwman

    The short, medium, and long term consequences of this decision, if it holds, are complex and no doubt will yield surprises. Politically, it may generate renewed focus on political battles in the states, where the abortion fights will now be centered. Who knows, but it may increase the velocity of red to purple to blue, or create more 50/50 states over time, which could be a healthy result. But I disagree with the view that Roe should have been considered sacrosanct, and I think that Alito’s lenghy discussion of stare decisis is pretty well done. As for our host’s view that stare decisis should be controlling for decisions that create (or belatedly recognize) individual rights, I take the point but find it intellecually untenable, especially since most decisions according rights to one group can be seen to diminish the rights of others. At some point, the Court should acknowledge flaws in earlier decisons and not struggle to justify the earlier result at essentially any cost. That is especially true for issues that are highly politicized and susceptible to being addressed by people elected to address such political issues.

  10. C. Dove

    Nailed it. When someone mentioned Blackmon’s recent take on Volokh, how the leak was maybe intended to goad certain justices in certain directions, it occurred to me that timing is arguably as important as, if not more so, than the decision itself. Even if Alito’a first draft gets canned, someone at SCOTUS decided to shout “fire” in a crowded theater. Can’t unring that bell now.

  11. PK

    This is a catastrophe for the Court. I had some vague hope that Roberts would steer the ship clear of this iceberg it seems intent on ramming into. It’s impossible to exaggerate how large of an issue this is and will be. After 50 years? I’m left staring wide-eyed at what’s to come, the ripples, if everything plays out as it seems likely to.

    Do they not see the blowback from this or do they not care? It’s hard to see how the Court maintains any sort of legitimacy long-term after this.

  12. Patrick Henry, the 2nd

    “Before, the Republicans were poised to take back Congress. With this leak, that may not happen, as this will outrage moderates, motivate progressives to vote and change the entire dynamic of the midterms.”

    Nah, this will do nothing of the sort. It was clear before and even more so now when we have polling. The hard core on the Dems side would vote either way. For the moderates, they actual will support this – because moderates support the 15 week limit in the Mississippi law. That was clear for decades. And its more important for them to stop paying $6 a gas than it is for a law that matches their preferences anyway. GOP will win big in the fall.

    “This was because I did not believe the Supreme Court would be so destructive, so ruinous of its own institutional integrity, so callous in taking away a constitutional right once given, as to reach this decision.”

    Except the original ruling was so destructive, so ruinous of its own institutional integrity, and this fixes it. And it never was a constitutional right, so it couldn’t have been properly given. In fact, the original took away a constitutional right for millions of babies – the right to life. Again, this fixes it.

    This is a glorious decision for life and liberty. It should be celebrated.

    1. SHG Post author

      Insisting on your psychotic delusions makes them no less psychotic and no less delusions.

  13. David

    Thanks for this comment, without which some of us might forget that the alternative to Dems are crazies like you. No matter how bad the Dems are, at least they aren’t you. Keep leaving comments so no one will ever forget just how fucking nuts you are.

    1. SHG Post author

      The choice of ‘nym was pretty much a dead giveaway. Just as there’s a lunatic fringe on the left, so too is there one on the right, every bit as crazy if not more so. At least they’re obvious about it.

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