Dishonor abounds in the sordid and tragic tale of the leaked initial draft of the U.S. Supreme Court ruling overturning Roe v. Wade.
If anything, the whole episode is a product of our increasingly degraded times. Everyone involved strives to justify doing the wrong thing for some just end.
Republicans and conservatives are outraged that someone — a person who has yet to be identified — leaked Justice Samuel Alito’s draft ruling to Politico. They say doing so was despicable, a violation of precedent and a profound betrayal of trust.
These conservatives have a valid point.
Whoever did leak the ruling did violate both precedent and trust and should be held accountable. He or she should not be employed by the court any longer and, if the leaker is a lawyer, should face disbarment.
But those same conservatives overlook their own role in this ugly saga.
By inventing rules and then dispensing with those same rules when doing so suited their immediate purposes, Republicans set in motion a process that encouraged all involved to believe that anything goes. Questions of justice, fair play and basic honesty took a back seat in the quest of U.S. Sen. Mitch McConnell, R-Kentucky, and former President Donald Trump to pack the nation’s high bench.
Republicans also encouraged everyone involved in public life to engage in blatant lying and skullduggery by condoning and defending President Trump’s many such transgressions.
They now reap what they sowed.
If the law is something to be circumvented or ignored rather than honored, it is hard for those who ignored or circumvented it to invoke it.
Then there’s the matter of Justices Neil Gorsuch and Brett Kavanaugh, both of whom appear to concur with the draft ruling.
In their confirmation hearings, both Gorsuch and Kavanaugh testified that they consider Roe v. Wade to be established precedent and settled law. If this leaked draft is authentic—and Chief Justice John Roberts says it is—then Gorsuch and Kavanaugh did not tell the truth.
They prevaricated to ascend to a position of profound influence.
Just like the person who leaked the draft, they did something wrong to achieve what they consider a greater good. They thought they could lie their way to the truth.
There’s a cost to such conduct.
We Americans are seeing it now.
The U.S. Supreme Court not all that long ago was the most revered institution in American life. Now, the high bench—thanks to the machinations of McConnell and Trump, the perfidies of Gorsuch and Kavanaugh and the ethical obtuseness of Justice Clarence Thomas and his wife Virginia—is seen to be little more than a haven for mendacious hacks.
Alito’s draft will do little to dispel that impression.
I’ve read the 98-page opinion. It is eloquent in some places, strident in others and curiously silent at key moments.
It relitigates Roe, attacks the notion that personal autonomy and privacy are implicitly enshrined in our Constitution and undercuts the principle that precedent should guide the court.
It is on that last point that Alito spends most of his rhetorical ammunition, as he should because it is the part that presents him and his fellow radical conservatives with the biggest challenge.
Alito cites—correctly—that previous courts have overturned precedents. The most famous example, of course, is Brown v. Board of Education, which set aside the separate-but-equal doctrine and began the dismantling of legal racial segregation in this country.
Two things, though, differentiate the Brown decision from what Alito and his colleagues wish to do.
The first involves a question of consensus. Because the Brown decision did represent a significant break with American practice, Chief Justice Earl Warren worked hard to have the ruling be 9-0, even if achieving unanimity meant making concessions.
With such significant departures, Warren wisely believed it was important for the nation’s high court to speak with one voice.
If it stands, Alito’s ruling will overturn a half-century of settled law on a 5-4 vote—with four of those five votes coming from justices who were elevated to the bench via tainted means.
The other key difference is that Brown expanded our notions of individual liberty.
Alito’s opinion, if enacted, would deprive women of basic rights, thus contracting our notions of their liberty.
There’s nothing honorable about that.
Nothing at all.
John Krull is director of Franklin College’s Pulliam School of Journalism and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students. Send comments to [email protected]