It is Thursday
evening as I write this, and the biggest news story of the week still seems to
be Politico’s publication, on Monday night, of a leaked draft opinion by
Supreme Court Justice Samuel Alito which, if it goes into effect, would
overturn Roe v. Wade.
Needless to say, the Left is indignant. Already there
have been riots in several cities (ironically enough, that includes cities in
California, where the police who got their squad cars trashed will pose
exactly zero threats to abortion rights no matter which way the Dobbs
case goes). Also, leftist news sources from the Washington Post on down have
been spinning the presses to run opinion pieces about what a serious attack on “democracy”
this is.
Since the general sentiment here at Twilight Patriot is that
doublethink ranks even lower than rioting, I am not going to bother engaging with the
arguments presented in those opinion pieces.
At the same time, I think that all the conservatives
who are celebrating right now should be more cautious, and stay mindful of the
fact that at this point, we don’t really know much about what the published
opinion (as opposed to the leaked draft) is going to say.
Essentially, what happens with draft opinions is this:
Immediately after hearing oral arguments in a case (for Dobbs v. Jackson,
this happened last December) the justices meet in conference and hold a
preliminary vote. Then the Chief Justice (if he voted on the winning side)
assigns one of the justices the task of drafting the opinion of the court.
This justice’s goal is to write an opinion that at
least four others will sign on to – if he or she can’t manage that, then the Court might produce a flurry of concurrences and concur/dissents; alternately,
the justices are free to switch sides up until the day the ruling is announced.
(This rather famously happened in 1992 in Planned Parenthood v. Casey,
when Anthony Kennedy initially voted to overturn Roe v. Wade, but then
changed his mind two months before the opinion was announced).
It's worth noting that Brett Kavanaugh, who is the
swing-vote on the Court today, is one of Kennedy’s former law clerks.
So to sum things up, all that we really know at this
moment is:
1) At least five justices cast a preliminary, non-binding vote to uphold
Mississippi’s 15-week abortion limit.
2) Samuel Alito wants to overturn Roe v. Wade in its entirety.
3) Whatever is going on inside SCOTUS right now made somebody – most likely a
law clerk – angry enough to leak a draft opinion to the press, in an egregious and unprecedented breach of trust.
And this…
doesn’t tell us all that much. For all we know, (1) could just mean that SCOTUS
is going to let states ban abortion at 15 weeks, but no earlier. If this
happens, Democrats will loudly yell that America is being dragged back to the
dark ages. As usual, they will expect us all to ignore the fact that France,
Italy, and Germany – three countries whose laws are usually held up by the Left
as a model for America to progress toward – all ban abortion even earlier.
Alternately, the
leak might really mean that five justices sat down in that December conference
and decided they wanted to go all the way and fully overturn Roe v. Wade. We
know (see No. 2) that Alito, with his draft opinion, is trying to make this
happen. But we also know that each justice who voiced an intention of signing
on with Alito would have been subjected to months of pick-off attempts from the
four liberals – after all, Kennedy yielded to such persuasion back in 1992.
While we know,
from a public statement by John Roberts, that the leaked Alito draft is genuine,
we don’t know whether or not five justices still support it.
And then
there’s (3) – we know that a law clerk (maybe a conservative, maybe a liberal)
is really angry. If it turns out to be a liberal clerk, it probably means that
the Left is going to lose this case, and that somebody is making a last-ditch
attempt to change the outcome by… staking everything on a bet that the time has
finally come for “democracy” to fall back on its last line of defense – the
righteous anger of a callow, scofflaw twenty-something.
Yes, it sounds
dumb. But you’ve got to remember that our civilization’s cultural output over
the last two decades has trained young people to think this way. Stories like Mulan
and Zootopia and the newest Star Wars trilogy – which is what
these kids were raised on – all center on a young, righteous, highly self-confident,
and usually female protagonist, who battles against evil while discovering that
her elders have nothing of value to teach her, and that rules exist mainly to
be broken for the greater good.
It may seem
silly that I keep
bringing up these kids’ movies in my seemingly serious essays, but this
really is where the rising generation – a generation which by now is starting
to wield political power – is getting its worldview. (No, this is not going to
end well.)
If the leaker
is a conservative clerk, it probably means that one of the five justices who
originally promised to sign Alito’s opinion is wavering, and that the leaker is
trying to lock in the vote by making it so that the wavering justice (probably
Kavanaugh) would face great embarrassment if he gave the appearance of changing
his mind under public pressure.
Now, even as
most Republicans are cautiously optimistic about the contents of the Alito
draft, a quick look at Twitter might leave you thinking they’re much more interested
in the “appalling” leak and the “permanent damage” that it has done to the
“integrity” and “independence” and “legitimacy” of the federal judiciary.
Methinks that these
are the kind of people who, if they had written the story of the Emperor’s New
Clothes, would have made it end with the impudent child getting a good paddling
with a birch rod, and a lecture about how he must never again undermine his countrymen’s
confidence in their head of state.
If you are of
the opinion that SCOTUS, at any time in the last half century, has been
something other than the highest legislative body in a pyramid of bitterly-divided
legislative bodies, or that it has been “independent” in any sense other than
being above checks and balances, or that its members have generally acted with
“integrity” when they declare the meaning of the laws and constitution… then I
am going to be blunt with you: you are the same kind of person who, if you had lived
in the world of Winston Smith and Julia and O’Brian, would have believed and
repeated things like “Oceania has always been at war with Eurasia” and
“Ignorance is strength.”
Granted, I
still believe that the leak was a bad thing – just not a threat to the court’s integrity,
or to the rule of law, since you can’t threaten something that’s dead.
I consider the
leak a bad thing because (1) it was a breech of trust on the part of the person
or persons who did it, and all people – but especially people living in chaotic eras – have a general duty to keep their promises, and (2) it is yet
another piece of evidence there are people high up in the government who believe
that most if not all laws may be justly broken for the sake of expressing
maximum partisan rage.
Then again, we
kind of already knew that from the George Floyd Riots back in 2020, and the brouhaha
at the Capitol in 2021.
We live in interesting times.
Brilliant. This essay needs the widest circulation.
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