Get ready for exploding heads and trigger-necks the likes of which we’ve never seen before. You thought land-whales of indeterminate gender bellowing at the sky in 2017 was epic? Grab your popcorn and hold on to your seats, folks: it’s gonna be a crazy, violent ride.
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The first thing to note is that this decision doesn’t of itself ban abortion. It simply means that abortion law will become the sole province of individual states. There will be no more guaranteed federal protection for abortion.
The second thing is that this isn’t a repudiation of abortion per se. Rather, Alito, a renowned “originalist”, and allegedly four of his colleagues who’ve sided with him, are arguing that Roe should never have been ruled, simply because it was based on arguments that are nowhere to be found in the Constitution.
This is a repudiation of judicial activism.
Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” Alito continues, adding that its reasoning was “exceptionally weak,” and that the original decision has had “damaging consequences.”
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes […]
“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.”
Politico
These are very telling words. Especially the phrase “egregiously wrong”.
One of the great fallacies of the left is its assumption that it is “on the right side of history”, and that recent decisions celebrated by the left, such as gay marriage, are likewise, because of an assumed infallibility of the Supreme Court. This ignores some of the “egregiously wrong” decisions of the Court in the past, such as Dredd Scott v. Sandford, which denied basic Constitutional rights to people of African descent. Current Justice Brett Kavanaugh also used the phrase “egregiously wrong when decided” to describe two more recent Supreme Court rulings: Plessy v. Ferguson, which upheld racial segregation, and Korematsu v. United States, which justified the detention of Japanese Americans during WWII.
So, the draft ruling acknowledges that the Supreme Court is not infallible, and repudiates activist judges who make rulings based on “feelings” rather than on the actual words of the Constitution as its writers intended them.
The draft ruling also sounds ominous warnings for other “progressive” rulings by the Court, although Alito stresses that, “our decision concerns the constitutional right to abortion and no other right”.
But the implications of the resolution are there. The draft argues that so-called “unenumerated rights”, rights judged to be protected by the Constitution even when not explicitly mentioned by it, “must be strongly rooted in U.S. history and tradition”. To back his argument repudiating Constitutional protection of abortion rights, Alito cites the long history of US law prohibiting abortion, “from the earliest days of the common law until 1973”.
That the draft resolution has been leaked at all indicates just how high the political stakes are. The Supreme Court places great store on on protecting the confidentiality of its internal deliberations. Former justice Ginsburg used to say that, “Those who know don’t talk, and those who talk don’t know”. So, who’s doing the talking, now? “A person familiar with the court’s deliberations.” “A person familiar with the court’s proceedings.” Phrases grimly familiar from the years of Trump Derangement.
Whether the draft is authentic or not — and it certainly appears to be — the strategic leak will certainly increase pressure on the Court. Justices have, after all, been known to change their votes after draft resolutions. This leak is clearly intended to incite violent protests in order to cow justices into changing their votes.
So, expect the buses of activists to descend on Washington any day, and the shouting and screeching to begin in earnest. Almost certainly, we’ll see a repeat of the violent invasions of the Supreme Court building — part of the Capitol precinct — that occurred during the Kavanaugh confirmation hearings. Justices will be screamed at, even threatened.
Just don’t expect the media to call it an “insurrection”, though.