The Woke Sleeping Giant

Japanese Admiral Isoroku Yamamoto, who planned and executed the attack on Pearl Harbor, is famously reputed to have written in his diary, “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” While the views of Americans vary about abortion, there is no doubt that only a significant minority want to ban abortion. The majority of Americans believe it is, and should be, a constitutional right.

But abortion is only the beginning of the conflagration caused by the leak of the draft opinion. It was obvious that this would strike a significant blow to the integrity of the Supreme Court, not because of the content of the draft but because it proved, in the minds of many, that the catastrophizers were right and the Court is now nothing but a machine honed to do the bidding of the radical right wing.

While most lawyers and legal academics were appalled by the leak, the leaker was hailed as a hero by progressives for revealing what they wanted revealed, that their worst fears of the  conservative capture of the Supreme Court were true. And even if abortion rights aren’t enough to light everyone’s fire, the text exposed the view that the Dobbs opinion is merely the starting point for the radical right-wing remake of America.

In the draft decision Alito criticizes both Lawrence v. Texas and Obergefell v. Hodges as similar to Roe and Casey as the rights protected in those cases are not “deeply rooted in history.” So, coming soon to a red state near you, expect laws that outlaw sodomy and gay marriage as the Court has signaled they’re willing to upend stare decisis on these issues.

Griswold. Lawrence. Loving. Obergefell. This might have been viewed as absurdly hyperbolic two days ago, but after the leak of the draft, these are no longer ridiculous fearmongering cries. If you want someone to blame for raising this possibility, blame Sam Alito.

To the extent that the abortion battle might not be the foremost issue in the minds of Americans, consider what adding contraception, gay sex, inter-racial marriage and gay marriage to the mix will do. This suddenly touches a lot of lives. Who believes birth control should be criminalized? Who doesn’t know a gay person and believe they should be allowed to live their life without being criminalized for who they love? Maybe not you, but then you’re the outlier. Even Dick Cheney learned that lesson.

This suddenly isn’t about abortion anymore, but about the litany of rulings that ended the criminalization of conduct that today seems so obviously proper and ordinary as to be unworthy of a second thought. Now, we have to give them a second thought. Now, they require a second thought because Sam Alito said so. They’re in play because Alito put them in play. And to be fair, if Roe and Casey can be reversed, then there is no assurance that any unenumerated right is safe. And even enumerated rights are subject to reimagination, whether by this Court or another in the future should stare decisis be a secondary consideration.

It may be that the leaked draft was Sam Alito’s most fevered dream opinion, and the other justices who voted with him rejected his opinion, possibly even were ready to change their vote. One of the speculative theories about who leaked the decision is that it was a  conservative clerk, who sought to lock in a waffling justice. It’s possible that the hero of the left wasn’t exactly interested in transparency.

The point isn’t whether America can reach a consensus about abortion, even if the extreme right wants to ban it completely and the extreme left wants it available on demand up to the moment of birth. The point now is that the Supreme Court just confirmed the worst fears of a nation that it will use its authority in radical ways. And if it is no longer a court, and just another political wing of the right, then it deserves no respect.

Students at Yale Law School, to no one’s surprise, immediately took the path of rejecting the Supreme Court’s legitimacy. The irony is obvious, that they relegated law to themselves while studying what a now-illegitimate court has to say about it. These are the kids who will wear robes some day. And as far as they are concerned, they are the law. If your response is that makes them no different than Alito, just the other flavor, so what? They know that they are on the side of good, so it’s entirely different.

What will ultimately become of abortion, assuming the Supreme Court overrules Roe and Casey, will eventually be a compromise because that’s what the vast majority of Americans want. For those who believe passionately that abortion is wrong and evil, you are the minority and will not prevail.

But in the meantime, this leaked draft has not only given energy where it had waned, motivated the progressive wing to rejoin the fight and raised the specter in the minds of the moderate that the radical right was more dangerous than the radical left. And it’s no longer possible to shrug off the catastrophizers given that the Supreme Court appears to be doing the unthinkable, and Alito gave every reason to believe that it’s merely the start of their radical shift.

I didn’t believe this was possible. I didn’t believe the Court would so foolish as to squander its integrity on such radical rulings. But I really didn’t believe that Alito was so crazed as to raise the possibility, if not probability, that a series of pillars of American society as we know it would fall. Griswold. Lawrence. Loving. Obergefell. This is no longer about legal analysis, but about the radical right-wing reshaping of a nation. Americans don’t want it and won’t stand for it. And they are now awake.

33 thoughts on “The Woke Sleeping Giant

    1. Sgt. Schultz

      Many of us wonder which side of crazies will out-crazy the other side. It would have surprised no one for the Supreme Court to have held that it was constitutional for states to impose limitations on abortion, but reversal of Roe was the sort of thing only some crazy histrionic “the sky is falling” progressive would believe could happen. After all, the Supreme Court couldn’t be that crazy, right?

  1. Rob McMillin

    Roe v. Wade may have been good policy but it was terrible as a decision, tortured legal reasoning that legislated from the bench.

    We are better off when the law means what it says, not what a panel of judges want it to say.

  2. Skink

    Roe was wrongly decided. It should have been fixed 20 years later. It wasn’t. What happened in its wake was predictable: a bunch of “penumbra” rights claims and passive recognitions. It was an abortion unto itself. It had to be fixed, but that would take some massive balls because the reaction was always going to be seismic.

    This draft does that. Roe was a piece of legislation. The Court did something in 1973 it had no business doing. The creation of rights belongs solely to the people. It can be done through Congress. It can be done through state legislatures. It can be done directly by the people through the amendment of state or federal constitutions. It can’t be done by courts. Not even the Court. This draft puts the power back where it always belonged–with the people. If it wakes people up to the reality that they are responsible for defining their relationship with the government, then history will treat this moment with awe.

    But it won’t be an easy course. People will see this as an attack on rights, though the draft takes some care to explain its limited reach. Most people won’t read the 98 pages, but will only gain an understanding from a twisted media representation. Most that read it won’t understand the message. That’s why lawyers are still needed in bars and restaurants. It’s where the explanations are done. I litigate the Constitution everyday. There’s a pocket version of the document on my desk from when the 11th Circuit used to give them out after I sent the check for renewal of my privilege. I read it before filing anything of import because I should. I’m happy to explain stuff to people that don’t litigate the Constitution everyday.

    I have no fear this is the end of stare decisis. Roe was crap and caused turmoil. It had to be undone, regardless the subject matter. It will be a shitshow, but shitshows are often necessary and sometimes even good.

      1. Skink

        Nope, but check back when the dust settles. Who knows, the 10th Amendment might finally have meaning.

    1. PK

      All the bars and restaurants I frequent are only serving crow, and I’m eating it with gusto.

      Are you downplaying at all the potential reaction of those in favor of the right to an abortion? Do you have no fear because you believe the other cases Alito mentioned also have at least suspect reasoning? Are you content with all of those cases going down as well, or would that change your opinion on stare decisis?

      I’m really asking, if my past history clouds my intent in some way. I’m reformed, you see. I want to see the light at the end of the tunnel, but can’t agree with you on all of this. I see a storm brewing and beyond it, I don’t know. The suffering can’t be worth it.

      Right now, the left I’m talking to sound very much like King Lear. It’s not good.

      “I will have such revenges on you both,
      That all the world shall—I will do such things—
      What they are, yet I know not, but they shall be
      The terrors of the earth!”

      1. Skink

        No, I don’t see a parade of horribles because the draft is self-limiting. The concern with reversing Roe was always the undoing the ever-increasing nonsense created in the guise of privacy.

        Yes, people will react. I favor abortion. But I’m a lawyer, so I favor all branches of government recognizing the rule of law. The rule of law always had a path to allowing abortion: pass state laws allowing abortion. The proper reaction, the one recognized by the draft, is to do just that.

        For far too long, people have relied on taking whatever the government allowed. They see their rights coming from government. That’s not just legally wrong, it makes for a lousy relationship.

        Viva la revolution!

        1. David

          “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

          This may be good enough for you, but when the rationale applies with the same force to all substantive due process rights (and SHG leaves out a few in the crim law area, Gideon anyone?), this is little comfort when overruling an explosive 50 year old decision, refined but reaffirmed in Casey by the Supreme Court and relied upon by a nation.

          Alito said it shouldn’t be understood to cast doubt on the others. He didn’t say it wouldn’t be used to do so in the future. Oh, and I’m from the government and I’m here to help.

          1. SHG Post author

            It seems inconceivable that any of these cases would be overruled, and perhaps it is. The problem is that it seemed inconceivable that Roe would either. And with this draft, who can say with certainty that it won’t happen and those arguing that the Supremes are about to remake America are wrong?

            Skink isn’t wrong about what Alito wrote in the draft, but not everyone is as trusting in Alito as Skink, with good reason.

            1. Skink

              No. It isn’t about trust. I trust nothing and nearly no one. But the entire force and rationale of the draft is the Court must remain within its boundaries. That’s good because it must be limited. The Court in rogue, as it was in Roe, is not functioning within its constitutional imperative. This is, at least, a reminder for the Court to not overstep its bounds.

            2. SHG Post author

              And if the “court must remain within its boundaries” in Roe, why would it not in the myriad other substantive due process cases that create constitutional rights out of thin air? Are you not getting how internally inconsistent your argument is? But at least you’ve shifted away from “because Alito said so.”

    2. abwman

      As you note, the draft opinion specifically rejected the notion that reversing Roe should be viewed as a predicate for rethinking the other unenumerated rights the Court has approved. Yet, the first words of our President broadcast by the media were scaremongering words about a supposed attack on those other rights. I guess that’s not surprising, but I can only hope that serious lawyers will take the time to point out the specific ways the opinion lays down markers against that occurring, that is if a final opinion does explicitly overturn Roe.

      1. SHG Post author

        Hope for the best. Prepare for the worst.

        When was the last time panic was assuaged by the reassuring dulcet tones of calm lawyers?

        The problem with Skink’s perspective isn’t that he’s wrong on the law, but fails to take into account the vast majority of Americans neither know nor care about the merits of Roe’s rationale nor the nuance of the draft decision, the reasoning of which will easily apply to a broad array of other cases which Alito kindly mentions. What they did believe was that this was not going to happen, this went too far, the Court wouldn’t go there.

        The life of the law isn’t logic, but experience.

        1. abwman

          The draft opinion repeatedly emphasizes the uniqueness of the abortion issue because it involves a right that is connected to extinguishing a potential life. It’s hard to see how any of the other mentioned rights can pass this hurdle (except conceivably contraception, and it is indeed histrionic to suggest that issue is in play). The reason for Alito’s focus on this distinction may be not only the desire to make the opiniin palatable to the middle ground, but the need to do so to get a majority to join him. I think that could be especially true for Gorsuch.

  3. Kathleen Casey

    I have had in mind for a long time that the partial birth abortion and Gosnell travesties will reap the whirlwind, a phrase not original with our senior NY senator. It looks like it’s happening.

    1. norahc

      50 years of relying on a court decision instead of passing an actual law when they had the majorities to do it.

  4. B. McLeod

    These same people applauded the politicization of the court while it was perceived as a progressive tool to redefine marriage and super-legislate their Utopian society. No heed was paid to any of the voices that pointed out the risk of transmogrifying the court into such a tool. Now that reality is dawning, they still don’t get it, but only see the need to go even further down the primrose path of idiocy.

  5. Mark Myers

    I wonder if this meant to shift the Overton window. No doubt Alito actually wants this, but now some measure short of gutting Roe and Casey entirely may look temperate and measured in comparison. It also may diffuse some of the panic from moderates if the entire sky is no longer falling in the final opinion.

  6. Hunting Guy

    Persian adage.

    “This too shall pass.”

    But like kidney stones, it will be painful but eventually something else will attract the masses.

  7. James

    Golly I hope you’re right. But the disappointment rate seems to be increasing daily.

  8. Jake

    Well, would you look at that? The sky really is falling. At the very least I find it comforting that Yale Law students now know what your average BIPOC has known forever. This is the beauty of transparency. Let the light shine in. Life would be so much simpler if the Constitutional originalists felt comfortable putting their white robes back on and saying what they mean in plain English: “We’re only interested in the rights of straight white men.”

    1. Miles

      I told my black client what you said and asked him if this is what “your average BIPCO has known forever.” He told me you should shove your BIPOC up your ass. I thought you should know.

    2. PK

      Hey Jake, it’s been a while. Hope you’re doing well. I’m glad to see you’ve remained consistent during my sabbatical. I think I have a sense of what you’re feeling, the curtain being pulled back and exposing the nasty underbelly, the “truth” and all of that. I’d ask that you resist that impulse, but I was wrong about this, so what do I know? All I do know is that I want this “mistake” corrected and as quickly as possible with as little collateral damage as possible. Fair?

      Whether other people know things is harder to talk about, and then finding the average person. Quite a task you’ve given yourself there. Good luck on the polling and all of that.

  9. Osama bin Pimpin

    I’m confident that the electorate will protect what you call “enumerated rights”. I’m also not worried about what YLS students think. Judicial nominees are chosen and confirmed by elected officials not kids who scribble on walls in New Haven. Who you call right wing radicals don’t have time to overrule every precedent just the one that was never really acquiesced to by substantial portion of electorate.

    Roe: Many states will ban abortion. But Gavin Newsom will fly you out to his neck of the woods to have yours and then buy you a dinner at the French Laundry. Even if abortion banning states try to punish that, federalism issue.

    Griswold: Acquiesced to. Christians are mostly over dictating other’s contraception choices, just don’t want to pay for it themselves. Even if banned in some states buy your condoms, pills, even abortofacients on Amazon. Federalism issue again.

    Lawrence: Acquiesced to. Even at the time, these laws were hardly enforced. Also, check out porn sites where “straight” sections include transwomen reaming cishetero men. Require so-called radical right justices to look at that and define gender.

    Loving: Totes acquiesced to. Again check out porn sites with prevalence of blacks on blondes category. Extra points if Thomas with his snow bunny chick writes opinion overruling. If overruled living in gay marriage banning state get online marriage officiated by reverend from Church of Subgenius then force state to recognize under full faith and credit clause.

    Obergefell: Acquiesced to. LDS Church in my neck of the woods has openly said give up on civil gay marriage just don’t let that affect how we marry in our temple. And their members are sick of getting their paychecks cancelled because of historical support of California Prop 8. And totes sick of the wedding cake compelled speech game. Again if all else fails, go with the Bob Dobbs/full faith and credit approach.

Comments are closed.