Thursday, May 5, 2022

Does It Matter Who Leaked It?

The right-wing noise machine is carrying on about who leaked the draft of the Alito opinion overturning Roe v. Wade as if that is what’s really important as opposed to returning the country and fifty percent of the population to being uteri with feet.  They are calling for the prosecution of the leaker — something for which there is no law on the books — and hinting broadly that it was from some feminazi who wants to undermine the Court and its integrity… which is hilarious in its own proposition.

But Josh Marshall at TPM has a different theory based on an op-ed in the Wall Street Journal last week.

I guess others clearly had. But I had not seen this April 26th Journal oped about the jockeying on the Mississippi abortion case until now. It’s very, very clarifying.

After Politico’s exclusive on Monday night publishing the draft Alito majority opinion, CNN followed rapidly that same evening with very specific details about Roberts’ position on the case, resisting joining the majority opinion and perhaps trying to lure one of the five Justices to a narrower ruling. When that second story came out so quickly I said that it made me think that the breakdown of secrecy on this case went beyond the leak of the draft opinion. Reading the Journal OpEd from last week makes that basically a certainty.

Read the Journal oped. It walks very clearly through the current deliberations of the Court, including Roberts’ effort to bring at least one hardliner over to a more limited, though still highly restrictionist, ruling.

These three paragraphs stand out, especially in the light of the reporting from Monday night …

But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an “undue burden” on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.

The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.

We hope he doesn’t succeed—for the good of the Court and the country. The Chief’s middle ground might be explainable with some legal dexterity, but it would prolong the Court’s abortion agony. Critics on the left would still lambaste the Court for letting Mississippi’s law stand. And states would soon pass more laws with even narrower restrictions that would eventually force the Justices to overturn Roe and Casey or say the precedents stand on solid ground.

I’ve done a bit of this myself in the past. You string out what you’ve learned to be the fact of the matter as a series of hypotheticals and logical deductions. It’s very clear that the jockeying among the six Republican appointees has been shared in the elite GOP legal circles that have a direct line into the Journal oped page. Clear as day. And that tells you pretty much to a certainty what was already seeming fairly clear: that the leak came from determined anti-Roe advocates trying to lock in Alito’s ‘take no prisoners’ elimination of Roe. Clear as day.

It makes sense. It would be far easier to convince the conservatives to circle the wagons and rally to the defense of the indefensible rather than coax some wavering moderate to vote to keep some semblance of Roe and Casey intact. That’s because there are no moderates on the Court, wavering or otherwise, and Chief Justice Roberts trying to control his fellow conservatives is like trying to calm a room full of cats with a squirt gun.

There is no middle way. The Court is, to quote a character of mine, kinda fucked up, and if this opinion stands regardless of the editing that goes on between now and the day in June or July when the opinion is handed down, it doesn’t matter who leaked it or why. The lives of the women and their families and all the rest will be fundamentally altered, and not in a good way.


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