No more Roe?

Last night a friend wrote to me of a supposed leaked draft of a Justice Alito decision overturning Roe and Casey. The news reports were acting as if it was real.

I'm going to go out on a limb and say it is a fake. I'm not happy to say that. I hope I'm wrong. I suspect if it is fake, Justice Roberts will be all over it and we will have a denial from the court today. I don't remember there being a leaked draft opinion before, not in the 20th century anyway. I can't say I've researched it, but my memory of what I've read on the Court, including gossipy accounts, does not ring a bell. There have definitely been indications of leaked results before, but I believe more to members of congress than to the press. We will see.

But, my most compelling reasons are in the "draft" itself. I'm not an expert on the way Justice Alito writes by any stretch. But numerous phrases in the draft seem to be very un-Alitoish to me.

The first one that significantly struck me "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak and the decision has had damaging consequences." 

Then, there was his emphasis that there was no support in the law before the late 20th century regarding the right to abortion -  "Zero. None" the draft states. It struck me more as a statement in a bar or a text than a legal one like this. 

Then, after reviewing the historical evidence showing that an abortion right is not deeply rooted in our history, the draft states: "Respondents and their amici have no persuasive answer to this historical evidence." It is nothing more than my ear that is telling me this was not written by Alito. It could be I am wrong and Justice Alito was just "fired up, ready to go," as the Obama-campaign liked to quote of a passionate supporter. But, then two paragraphs below it, the draft contains the same phrase again, except this time, the word "amici" is not italicized. Why not? It is still a foreign word. Justice Alito is a fine writer. Would he not come up with a different phrase? 

I could go on with the textual criticism, but those were my most "egregious" examples and each one may be 100% incorrect. Why compound my error if in fact wrong? Besides, I hope I'm wrong.

Then there are these points in which I am just playing junior detective. If it is in fact a real first draft, would it say the words "first draft" on it? I don't know as they don't normally pass out the Court's actual first drafts. But, it strikes me that he would have written - "draft," not "first draft" on it. Also, why does it already have the "United States Reports" heading on it saying that it might be corrected? Do the Justices put that on their drafts? Wouldn't the publisher put that on? I really don't know, but asking.

If it was real and leaked, it is of course a scandal, most likely because of a clerk rather than a Justice. I hope it does not allow for pressure to be brought upon the Justices who would otherwise join it. And I would be delighted. It would also make the case on the Texas statute moot, as that statute by its own terms expressly makes itself of no effect if Roe and Casey are overturned. 

I admit I have also predicted that Justices Roberts, Kavanaugh, Gorsuch, even Barrett, would not sign onto overturning Roe. I will still be surprised if they do. We know Kagan, Breyer and Sotomayor, would not. I do think Alito would, and Thomas, but that's it. 7-2. 

We will see. Probably in a few hours.

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POSTSCRIPT (later the same day):

Well, just forget most of that above, because it was a real leak. Justice Roberts spoke out, called it a betrayal and said he has asked the Marshall's office to investigate. So, my Sherlockian analysis is kaput. But, one, for once I'm glad, temporarily at least, that I don't have millions of readers and two, I am very happy, presuming that in the face of the vicious offense I expect will come by people who differ and believe social disruption, threats and/or violence is the way to win (e.g., Chuck Schumer, at least significant parts of BLM, Antifa, some abortion proponents, etc.), whichever Justices have tentatively signed on will stick to their guns. 

Of course, I hope that they catch the miscreant, or miscreants, responsible. I don't know how hard they will try. It doesn't matter that much, but, what it means to me is that there is one more example of what the left is up to this past decade or so, much more regularly than the left (despite what the FBI and the media will tell you). They will win anyway they can. They have no shame, don't care how they win, and will simply claim it is the right doing what they are doing. And the media will back them for the most part. 

Ironically, many of my friends on the right are very concerned about whether this will hurt their team in the coming elections, which they felt so good about just a day ago (way too early). They feel it is not such a big deal about abortion and it is not worth it. I can't help but feel the opposite. It is one of the most controversial and deeply felt issues in our country's history. When should they win that issue (if, in fact, that is actually what happens - see below)? Because after the mid-term elections in November, we immediately leap into the presidential election cycle, and there will be congressional votes too. 

In fact, in case the Republicans. and/or conservatives think that if they just get passed the abortion issue and people will be on their side, remember, that they are going to attack you on it anyway, claim that you hate women, want them to bleed and die (as my sister said of me once) and want little babies to starve. They are still going to claim that guns are responsible for gun deaths, de, spite the fact that this seems to be overwhelming a problem in Democrat Party governed areas, particularly urban ones; they are going to claim that the biggest threats to this country are right wing violence based upon one incident on one day by a handful of idiots who were, we now know, instigated by federal undercover agents, when there was in the past few years, literally hundreds of riots across the country perpetrated by the left, that most crime is committed by people who almost certainly vote for the left, that most murders, including gun murders are. They are going to attack whoever is the Republican candidate, if not Trump, just like they did Trump (hopefully, with less success). 

Abortion is just one issue. Republicans/conservatives are worried that there are significant numbers of independents, even some Republicans, who would have voted for them but will not now do so because of the abortion issue. I am not suggesting that there is probably some truth in that. I just ask, at what point do you put off victories so important to your base, for some votes. What is the point? Just political control? Because you are so sure that someday your party will have complete political control and be able to do anything you want if you just give up your important victories?

Does it make a difference that the draft was released now and not the actual decision in two months? Did you want to lose this issue forever? Okay, but don't pretend you actually care about abortion or any issue.

So ends the harangue. But, a few points I want to talk about that I am understanding many people don't know about because they are either asking me or telling me differently.

First, the opinion. It's a draft. It says "first draft." It is not the actual decision. Because it says it is the opinion of the court we will assume that he tentatively has four other judges joining him, Gorsuch, Kavanaugh, Thomas and Barrett. I don't see that on the opinion, though it will eventually state who is joining, but everyone thinks it is the case.  Rumor has it - maybe true - that Roberts doesn't want to overrule Roe/Casey but would agree to find the Mississippi law constitutional under them. That sounds like Roberts-like prevarication because he is often more concerned about the "reputation" of the Court. But, he may join the Democrats. I suspect he will do the latter, based on issues of stare decisis aka precedent.

The way it works in the Supreme Court (and probably other appellate courts - but I base this on books I have read about the Supreme Court) is that a justice writing the Court's opinion circulates it to the other Justices. They then can make suggestions, explain how they might agree if certain changes are made, and they pass it back. He can then make changes based on those thoughts (or his/her own). It can go back and forth several times. Sometimes for months, as they have other cases. And a Justice, or all of them, can change their mind. We don't know what the ultimate decision will be yet. As with the predicted Republican sweep of the midterms, it remains to be seen.

Another issue I have heard discussed today is what it means. Most people are not going to read the decision. But, it clearly states that it means only that the power to decide will go back to the states.

And that's a wrap.