The scandalous leak of a full draft of Justice Samuel Alito’s five-justice-strong majority opinion in this term’s marquee Supreme Court case, Dobbs v. Jackson Women’s Health Organization, is an event without precedent in the Court’s history.
If Alito’s coalition holds, the leaked majority opinion, a February-dated first draft whose authenticity has been confirmed by Chief Justice John Roberts, would represent the culmination of a half-century of pro-life efforts to overturn 1973’s Roe v. Wade atrocity. Roe, which was the Court’s worst decision since 1857’s Dred Scott v. Sandford due to the cases’ similar fundamental lies about human anthropology and human dignity, should have been overturned in 1992’s Planned Parenthood v. Casey.
It wasn’t. On the contrary, pro-lifers were deigned to by a relativistic Court plurality, which mused in Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.” Now, at long last, after an unconscionable 63 million unborn children have been snuffed out in the womb since Roe, the Court in Dobbs seems poised to do what it could not do in Casey: declare the moral and legal illiteracy of Roe’s central holding of a constitutional “right” to abortion.
Poised, that is. It is too premature to celebrate; pro-lifers have been burned far too many times before. Furthermore, votes can still flip even at this late hour, as anyone with a long enough memory to recall the chief justice’s flip-flop in the 2012 Obamacare case, NFIB v. Sebelius, can attest.
And that leads us to the leaker, whose identity is surprisingly still unknown as of this writing.
While we cannot be certain, it is highly likely that the leak originated in the chambers of one of the Court’s three lockstep-marching progressives: the retiring Justice Stephen Breyer, Justice Elena Kagan and Justice Sonia Sotomayor. The most straightforward, and indeed most likely, explanation is that a fanatical pro-abortion law clerk in a liberal chamber decided to seek progressive “hero” status and a shiny book deal, a MSNBC talking-head gig and/or a gender studies professorial perch at a mid-tier university. That rabid Antifa thugs will be dispatched to the private residences of the case’s two swing justices, Amy Coney Barrett and Brett Kavanaugh, is not a bug but a feature of this malicious scheme. Indeed, it appears some vile pro-abortion activists have already publicly posted some of the justices’ personal addresses.
It is impossible to describe how grotesque this state of affairs is. We are a long, long way removed from Antonin Scalia going to the opera and sharing a laugh with his dear friend, Ruth Bader Ginsburg.
The leak appears to be part of an intimidation campaign. It is an intimidation campaign not merely to peel away Barrett and/or Kavanaugh into the hands of the ever-mercurial chief justice, moreover, but also to cow moderates Sen. Kyrsten Sinema (D-Arizona) and Sen. Joe Manchin (D-West Virginia) into assenting to Senate Majority Leader Chuck Schumer’s (D-New York) desire to nuke the Senate filibuster and ram through a Court-packing boondoggle and/or a statutory codification of Roe’s underlying abortion “right.”
This is thuggish behavior — precisely the sort of mischief Abraham Lincoln condemned in his 1838 Lyceum Address, when he famously said: “There is no grievance that is a fit object of redress by mob law.” And it is thuggish behavior that deserves severe rebuke, general ostracization from polite society, extreme vocational punishment, public shaming and criminal prosecution to the extent feasible under law.
We will likely know the identity of the leaker soon. But until then, the most pressing question facing the Court — not to mention the most pressing question facing unborn children nationwide — is whether Alito’s five-justice majority will hold strong amid this appalling, iconoclastic attempt to scupper the institution’s independence and legitimacy.
The answer ought to be simple: At this point, the justices have no choice whatsoever but to plow full-steam ahead — to do what needs to be done and overturn Roe and Casey.
For a swing justice to defect now and rule in any manner short of cleanly overruling Roe and Casey would be to give the leaker and his/her street brawler allies a massive win. And it would be a win from which the Court would likely never recover for the remainder of its history. If the American Founding-era idea of a “government of laws, not of men” means anything at all, it means that the judiciary — our most cloistered and “least dangerous” governmental branch — cannot be subject to mobocracy the likes of which Lincoln warned about in 1838. To defect now would be to permanently incentivize opinion leaks in the future — and even the mild proliferation of these leaks would paralyze the Court and prevent its normal day-to-day operations. One ought to not negotiate with terrorists, and the swing justices in Dobbs ought to not “negotiate” with the reprehensible leaker.
We are in uncharted waters, at this point. All eyes remain on the chief justice, to see if he can find a way — any way — to restore to the Court a semblance of that which he has long cherished most, its perceived institutional integrity. That could prove to be an uphill battle; the leak really is that devastating. But there is one easy way for Chief Justice Roberts to do so: Join Justice Alito’s courageous coalition and send the bloody Roe and Casey precedents to the ash heap of history in clarion 6-3 fashion.
Josh Hammer is opinion editor of Newsweek, a research fellow with the Edmund Burke Foundation, counsel and policy advisor for the Internet Accountability Project, a syndicated columnist through Creators and a contributing editor for Anchoring Truths. A frequent pundit and essayist on political, legal and cultural issues, Josh is a constitutional attorney by training and the co-host of two podcasts: Newsweek's "The Debate" and the Edmund Burke Foundation's "NatCon Squad."
An outspoken conservative, Josh opines on conservative intellectual trends, contemporary domestic and foreign policy debates, constitutional and legal issues, and the intersection of law, politics and culture. He has been published by many leading outlets, including the Los Angeles Times, the New York Post, Newsweek, National Affairs, American Affairs, The National Interest, National Review, City Journal, First Things, Public Discourse, Law & Liberty, Tablet Magazine, Deseret Magazine, The Spectator, The American Conservative, The American Mind, American Greatness, American Compass, Anchoring Truths, Townhall, The Epoch Times, The Daily Wire, Fortune, Fox Business, Pairagraph, The Jerusalem Post, The Times of Israel, The Forward, Jewish Telegraphic Agency and the Jewish Journal. He has had formal legal scholarship published by the Harvard Journal of Law & Public Policy and the University of St. Thomas Law Journal.
Josh is a college campus speaker through Intercollegiate Studies Institute and Young America's Foundation, as well as a law school campus speaker through the Federalist Society. Prior to Newsweek and the Daily Wire, where he was an editor, Josh worked at a large law firm and clerked for a judge on the U.S. Court of Appeals for the Fifth Circuit. Josh has also served as a John Marshall Fellow with the Claremont Institute.
Josh graduated from Duke University, where he majored in economics, and from the University of Chicago Law School. He lives in Miami, but remains an active member of the State Bar of Texas.
