The Left Violates Institutional Norms, as the Supreme Court Appears Set to Overturn Roe & Casey
In short, Democrats fully support violating norms when it helps them achieve their desired political outcome.
News & Commentary
On May 2nd, the Supreme Court's draft opinion in Dobbs v. Jackson Women's Health Organization was leaked to Politico. The draft opinion, written by Justice Samuel Alito, would overturn Roe v. Wade and Planned Parenthood v. Casey. If the decision were issued today, Justices Thomas, Gorsuch, Kavanaugh, and Barrett would join Justice Alito in the majority.
While it is still unclear who leaked the draft opinion, the prevailing assumption is that a politically motivated law clerk working for one of the left-wing justices was the leaker. Only a select group of people would have had access to the opinion, namely, the justices and their law clerks. Chief Justice Roberts verified the authenticity of the leaked draft. He subsequently ordered an investigation by the Marshal of the Court to find out how the draft was leaked. If a law clerk leaked the opinion, that clerk could face criminal prosecution and certainly will be disbarred. A Supreme Court opinion leak is entirely unprecedented and cuts directly against the Court's integrity. The leaker's goal was to coerce one of the five justices voting to strike down Roe and Casey to switch their vote. The leaker hopes that one of the justices will crack due to public scrutiny.
Justice Alito writing for the Court, set forth a complete, coherent argument, establishing the Supreme Court's position on Roe and Casey. The Court would uphold Mississippi's abortion ban after fifteen weeks of pregnancy and overturn Roe and Casey. The Supreme Court argues that Roe and Casey are constitutionally baseless decisions and that the purported right to abortion was made up out of whole cloth. Justice Alito stated,
"We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment."
Unfortunately, most Americans lack a basic understanding of the federal court's role in our government. This ignorance has led many abortion advocates to make policy arguments for why the Court must uphold Roe and Casey and "keep abortion legal." Abortion advocates are committing two blatant errors by making these statements.
First, the federal court's role is not to engage in policy discussions or debates. That is precisely the role of the legislature. The court's role is to decipher the meaning of laws and the Constitution. Therefore, the Supreme Court in Dobbs is not ruling on the morality of abortion but rather the constitutionality of the Mississippi law and abortion broadly.
Second, abortion advocates often assert that this opinion would make abortion illegal. That assertion is patently untrue. By striking down Roe and Casey, under our federalist system, the issue of abortion is left up to the states. Far-left states such as California and New York will not only continue to permit abortions; they will likely legalize abortion through all nine months of pregnancy. Alternatively, red states, such as Mississippi, Texas, and Florida, will heavily restrict or entirely outlaw abortion.
In the Court's draft opinion, Justice Alito preemptively commented on both of these fallacies, which abortion advocates are currently purveying. Alito said,
"Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representatives."
The left has also falsely asserted that the Supreme Court should not strike down Roe and Casey due to stare decisis. Generally, the Supreme Court adheres to precedent when ruling. However, the Court is not bound to precedent, especially precedent inconsistent with the Constitution. There is a long history of the Court overruling its own egregious precedent. Plessy v. Ferguson and Schenck v. United States are two of the most notorious examples of bad precedent that the Court has overturned.
In the draft opinion, Justice Alito addressed the Court's duty to overturn egregious precedent, stating
"The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law. That is not how stare decisis operates."
The leaked draft opinion has led to a renewed effort from congressional Democrats to pass the "Women's Health Protection Act" in the Senate. The bill would have been an unprecedented federal expansion of abortion in the United States, permitting abortion on demand through all nine months of pregnancy. Despite already passing in the House, the bill failed once again, in the Senate, by a vote of 51-49. All fifty Republicans and Senator Joe Manchin voted against the bill. Democrats have also continued to call for ending the filibuster, to ram through legislation packing the Supreme Court with more leftist justices. However, the Democrats lack the votes to take any substantive action.
In addition to the proposed legislative action, we have seen some outrageous conduct from the left. Representative Ayanna Pressley argued that "this Supreme Court continues to obstruct the will of the people." Pressley's statement is absurd on its face. She argues that it is undemocratic for the Supreme Court to return the issue of abortion to each state for the voters to decide on. It is an objectively ridiculous contention. This draft opinion actively promotes "the will of the people" consistent with federalism by allowing the voters to directly decide for their state whether or not abortion should be legal.
Speaker Nancy Pelosi continued the absurd rhetoric surrounding abortion. In an interview with CBS, Pelosi said that the Dobbs draft opinion is "so serious and so personal and so disrespectful to women. Here we are on Mother's Day, a week where the Court has slapped women in the face in terms of disrespecting their judgement about the size and timing of their families." In short, Nancy Pelosi invoked Mother's Day to complain that women in some states will no longer be able to kill their child in the womb. Pelosi's argument is equally disturbing and perverse.
Abortion activists joined in on the antics, seeking to intimidate Republican-appointed justices and ultimately force at least one justice to change their vote on the Dobbs case. The pro-abortion group "Ruth Sent Us" doxed all six Republican-appointed Supreme Court justices. The group released a map showing the home addresses of Chief Justice Roberts, along with Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett. The pro-abortion activists highlighted their own stupidity by including Chief Justice Roberts in the address leak. Currently, Chief Justice Roberts is not voting with the Court's majority to strike down Roe and Casey.
Leaking the addresses of Supreme Court justices and protesting in front of their homes is an overt intimidation tactic. It is a disgusting subversion of our legal system. Some leftists have argued that protestors have the right to protest outside of justice's homes. Generally, one can assemble to protest peacefully. However, abortion activists are doing so to influence judicial decisions, which is an inherently criminal act.
It is perfectly acceptable for abortion advocates to protest against the draft opinion on social media, in the press, or in front of the Supreme Court building. It is entirely beyond the pale for abortion activists to leak the home addresses of Supreme Court justices and then descend on their homes.
Now that the draft opinion has been leaked, Chief Justice Roberts needs to immediately release the Court's official opinion in the Dobbs case to prevent any nefarious actors from taking harmful actions against a Supreme Court justice. The leak placed the Supreme Court justices, voting to strike down Roe and Casey, in a vulnerable position. Many abortion activists on social media have discussed attacking a Supreme Court justice to ensure the current majority does not have enough votes to strike down Roe and Casey. As it stands now, it would only take one deranged abortion activist attacking a justice in the majority to alter this case entirely. Unfortunately, this is a possibility until the Court issues its official ruling. Waiting to release the official opinion is unnecessarily reckless on the part of Chief Justice Roberts.
Violence by abortion activists is, unfortunately, a legitimate concern. This week, a faction of abortion activists showed their willingness to commit acts of violence on behalf of their cause. In Madison, Wisconsin, a pro-life organization's building was attacked by abortion activists. The attackers threw a molotov cocktail at the building. After the molotov cocktail failed to catch the building on fire, the pro-abortion attackers then lit it on fire. The attackers subsequently wrote on the building, "if abortions aren't safe then you aren't either."
The left purports to be in favor of institutional norms. The left lectured Republicans throughout the Trump presidency because President Trump "violated institutional norms." Yet, leftists refuse to condemn the person who leaked the draft opinion. They refuse to condemn those protesting in front of Supreme Court justice's homes in an attempt to interfere with the judicial process. The left seeks to abolish the filibuster, which was established to protect the minority from an overbearing majority. In short, Democrats fully support violating norms when it helps them achieve their desired political outcome. If the roles were reversed, and pro-life activists were protesting outside of the homes of liberal justices – the left would call those protestors racist and sexist for trying to intimidate female and minority justices. Additionally, the left would accuse those pro-life protestors of "threatening our democracy." The left should not be taken seriously due to its blatant hypocrisy and inconsistent standard.
Garrett Gillespie graduated Magna Cum Laude from the University of Central Florida with a Bachelor of Arts degree in political science.
The Gillespie Report is a weekly news and conservative commentary column written by Garrett Gillespie. Subscribe to receive the newest edition each week for free.