Roe v. Wade and the Leak

So obviously today is one of those days where I have no choice but to take a few minutes to write about something, mostly because there was a huge development yesterday that has sent shockwaves through the country. There literally isn’t anything else to write about, even the other important things, because this is such a huge deal that focusing on anything else seems ridiculous. As most people are probably aware, a confidential draft opinion from Supreme Court Justice Alito was leaked last night which made it clear that it is likely that Roe v. Wade will be overturned in the next couple of months.

Now on the surface, this doesn’t seem like a big deal. Things get leaked all the time, and many times we applaud those who do it because they are exposing terrible things that are going on behind the scenes that are a threat to our liberty. In this case, though, this is a terrible subversion of the constitutional processes that we have relied on for more than two centuries. One of the core aspects of the Supreme Court process is that the justices are supposed to deliberate on topics without outside pressure from the public. Their opinions are supposed to be based on interpretation of the Constitution and the other laws and decisions that have been created based on interpretation by previous decisions on those issues. The ability to speak freely between the justices without having to worry about public opinion is critical to working out the most logical decision concerning an issue.

What this leak has done, however, is expose the prevailing opinion of the court well before the decision will actually be reached in an attempt to intimidate the more conservative justices into swaying toward the other direction. The hope here is clear: certain members of the court vehemently oppose the inevitable decision that will be made here and are going to great lengths to subvert the process by involving the general public, which will inevitably result in riots across the country. We know this to be true because almost immediately after the leak, barricades went up outside the Supreme Court building.

It’s difficult to overstate the consequences of something like this, which has never happened in the history of our nation. While it is true that some of the most secretive government organizations in our history have had whistleblowers who exposed critically important problems within our political structure, intelligence agencies, military and more, the one place where this is not supposed to happen is the Supreme Court. Draft opinions are meant to be part of the internal debate between all the members of the court, and there are many times where opinions change based on review of the opinions of other justices.

How can the experts who our legislative and executive branches have determined are qualified to properly interpret the law feel they have the ability to truly tackle an issue from all sides if they have to worry about what they put to paper being exposed to the world before their final opinion is even formed? How can they feel free to even ask questions about certain hot button issues when they now have to constantly worry that something they propose might be used to incite riots across the country? The ability to freely discuss topics without the passions of the day overriding their discourse is what makes the Supreme Court the objective determining body of law in the land. It should not be swayed by public opinion.

The issue of abortion is not covered in even a roundabout way in the Constitution, which means that it is specifically reserved as an issue for each state to decide. The Tenth Amendment clarifies this without any room for ambiguity. Anything not delegated to the federal government specifically by the Constitution or its amendments is the domain of the states, not the federal government. The push to federalize the issue was unreasonable in the first place, and even more liberal judges such as Ruth Bader Ginsburg made it clear that Roe v. Wade should never have gone the way it did.

There will be many who extol the virtues of this person who decided to subvert the process of the court in order to push an ideological agenda, but let us not be confused: this is not some brave person exposing horrible infringements of personal liberty. This is someone who took a universally accepted practice and went outside of it in an attempt to force what is supposed to be the most objective body in our government to bend to public outrage. They hope that when the cities start burning the justices will change their mind to keep the peace.

Let us hope that our justices have enough of a constitution to stand by their convictions.

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