The president of Judicial Crisis Network (JCN) observed Tuesday on Twitter that while the leaked draft of the majority opinion by Justice Samuel Alito in the Mississippi Dobbs abortion case is “outstanding” in that it “explicitly rejects” the notion that it is the Supreme Court’s job to legislate abortion, the breach once again reveals that “forces on the radical Left that seek to undermine the institution of the Court” are a bottomless pit when it comes to their demands.
“This is an outstanding opinion, but it is also one that we should not have read tonight,” wrote Carrie Severino of the leaked draft opinion in Dobbs v. Jackson Women’s Health, a case that centers on Mississippi’s 15-week abortion ban.
Justice Alito's opinion does not mince words about Roe and its progeny. He describes Roe as "an abuse of judicial authority" and as being "on a collision course with the Constitution from the day it was decided." /2
— Carrie Severino (@JCNSeverino) May 3, 2022
“The forces on the radical Left that seek to undermine the institution of the Court have no limit; they will stop at nothing to get what they demand,” she continued. “This leak is just the latest iteration of the Left’s shameful campaign to intimidate and undermine the Court, and it should be seen for exactly what it is.”
The opinion's excellent discussion of the stare decisis factors notes that "some of our most important constitutional decisions have overruled prior precedent," including Brown v. Board, West Coast Hotel Co., and Barnette. /4
— Carrie Severino (@JCNSeverino) May 3, 2022
The 98-page “1st draft” opinion, dated February 10, was apparently leaked to German-owned Politico, in an extraordinary breach of Supreme Court protocol.
The Supreme Court on Tuesday confirmed in a statement the leaked draft is “authentic,” but added the document “does not represent a decision by the Court or the final position of any member on the issues in the case.”
JUST IN: The Supreme Court confirms the authenticity of the draft opinion revealed last night by Politico. The chief justice has ordered an investigation into the leak. pic.twitter.com/XZweHdyhCG
— SCOTUSblog (@SCOTUSblog) May 3, 2022
In the statement released May 3, the Court said:
Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.
Chief Justice John Roberts added his own statement, noting he has “directed the Marshal of the Court to launch an investigation into the source of the leak.”
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” the chief justice said. “The work of the Court will not be affected in any way.”
“We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law,” Roberts continued, adding:
Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.
Nevertheless, Severino described Alito’s draft opinion as “thoughtful, scholarly, and thorough.”
“Roe was egregiously wrong from the start,” Alito wrote, rejecting the 1973 decision that created a right to abortion.
“We hold that Roe and Casey must be overruled,” the justice asserted in the document. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
And that *is* exactly the Court's job. Here the Court finally takes itself out of the business of legislating abortion – a task for which it it lacks both the authority and expertise. Instead, that job will rightly be returned to the people and their elected representatives. /6
— Carrie Severino (@JCNSeverino) May 3, 2022
Severino added Alito’s draft opinion “does the work that the majority in Roe and Casey refused to do, looking to the Constitution itself to determine whether it includes a right to an abortion.”
“The opinion concludes it does not,” she noted:
Justice Alito’s opinion does not mince words about Roe and its progeny. He describes Roe as “an abuse of judicial authority” and as being “on a collision course with the Constitution from the day it was decided.”
More Alito on Roe: “[W]ielding nothing but ‘raw judicial power,’ the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”
The opinion’s excellent discussion of the stare decisis factors notes that “some of our most important constitutional decisions have overruled prior precedent,” including Brown v. Board, West Coast Hotel Co., and Barnette.
This leak is just the latest iteration of the Left's shameful campaign to intimidate and undermine the Court, and it should be seen for exactly what it is. /8
— Carrie Severino (@JCNSeverino) May 3, 2022
Severino observed that with Alito’s draft opinion, the Court would be “doing its job,” to “interpret the law, apply longstanding principles of stare decisis, and decide the case accordingly.”
“And that *is* exactly the Court’s job,” she asserted. “Here the Court finally takes itself out of the business of legislating abortion – a task for which it lacks both the authority and expertise. Instead, that job will rightly be returned to the people and their elected representatives.”
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Susan Berry, PhD, is national education editor at The Star News Network. Email tips to [email protected].
Photo “Carrie Severino” by Carrie Severino.
