An ominous-looking fence has been erected outside the Supreme Court building’s perimeter.
It seems there could be violence in the wake of a leaked opinion from Supreme Court Justice Samuel Alito.
But riots, as awful as they are, aren’t the greatest threat to the Supreme Court.
The policy the Supreme Court is reviewing is a Mississippi law prohibiting abortions after 15 weeks of pregnancy. However, the case has larger implications regarding the Roe v. Wade and Planned Parenthood v. Casey decisions that made abortion the law of the land in the 1970s.
If Alito’s opinion in Dobbs v. Jackson Women’s Health Organization stands, it would mean the end of the Roe v. Wade regime, and that’s a good thing.
“Undoing the falsely constructed right to abortion requires an opinion that reveals the dishonesty and corruption embedded in the reasoning of Roe and Casey,” wrote my colleague, Richard M. Reinsch II. “The majority opinion accomplishes this goal. In doing so, the Dobbs opinion enlightens the public’s understanding of why returning the issue to legislative deliberation is more likely to foster civic peace because abortion reaches settlement through politics.”
Overturning Roe v. Wade wouldn’t end abortion, but it would allow the debate over abortion and the right to life to be had again in all 50 states.
Still, that’s not the only issue at stake here.
The Supreme Court leaker has not been identified as of the writing of this piece. The scale of this leak, on such a potentially momentous decision, is unprecedented. It could lead to a criminal prosecution and should at the very least lead to the end of the person’s legal career (though, don’t be surprised if he or she ends up with a cushy legacy media gig).
Whatever the outcome of Dobbs, a Supreme Court leak is a big deal. It’s a shameful breach of trust that will be hard to fix.
And it isn’t just the leaker damaging the Supreme Court. That’s only part of this ugly puzzle. Democrat politicians—at this point to no one’s surprise—are using the leak and their anger over Alito’s opinion to cynically undermine the judicial branch’s legitimacy.
Some Democrats have floated the idea of passing a law to ensure abortion is legal everywhere if Roe v. Wade gets struck down. That appears unlikely to go anywhere. And plenty of states will most certainly now consider greater restrictions and prohibitions on abortion.
That’s the dilemma for the left. In the realm of politics, as Reinsch noted, our absolutist abortion regime—one that is among the most extreme in the world—cracks open.
In the last half-century, the left has relied on courts to force through its cultural ideas without a popular mandate.
Losing control of that process is causing Democrats to panic. They scream about “right wing” politicization of courts without a hint of irony.
The leak was bad, but this is worse.
Rep. Adam Schiff, D-Calif., was Mr. Norms during President Donald Trump’s tenure. Now he’s willing to flush norms down the toilet in favor of pure partisan hackery.
While President Joe Biden hasn’t yet come out for court-packing following the leaked memo, it should be remembered that one of the first things he did as president was to create a commission looking at the potential “expansion” of the Supreme Court.
Perhaps this was done simply to placate the left. That wouldn’t be a good bet, though.
Given how much this president has ultimately sided with left-wing radicals on issue after issue, it’s hard not to see the commission as anything less than laying the groundwork for future court-packing and evisceration of the judicial branch.
The situation is an interesting dilemma for the left, which always insists that it stands for “democracy,” but now frequently stands for unaccountable insiders against democracy.
It’s to cultural liberalism, not democracy or our republican institutions, that the left is truly committed.
So, when Democrats caught wind that they may lose their abortion Supreme Court trump card, they immediately dragged out the idea of “packing” the Supreme Court with justices that will do their bidding.
It’s a deeply cynical, if predictable, move.
When President Franklin Roosevelt proposed packing the Supreme Court with appointees favorable to his policies in the 1930s, he at least tried to cloak his partisan act under a nonpolitical guise of bringing in younger justices.
Modern Democrats apparently just don’t care. They want results.
Unlike in the 1930s—where congressional Democrats denounced and opposed the brazenly power-grabbing scheme—congressional Democrats today are leading the charge to pack, er, “expand” the court.
Through many decades of progressive dominance on the Supreme Court, the left was comfortable with maintaining its power. It will no longer wait patiently to get it back. A single institution not fully under its control must be destroyed, consequences be damned.
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