by Las Vegas Review-Journal Editorial Board, May 3, 2022
Democrats have been working to intimidate and tear down the Supreme Court since Mitch McConnell sat on Barack Obama’s high court nominee, paving the way for Donald Trump to appoint three justices. Those efforts went into overdrive on Tuesday following the leak of a draft opinion indicating the justices may be poised to overturn Roe v. Wade.
Speculation about the motivation of the leaker ran the gamut. Chief Justice John Roberts ordered an investigation, but it wasn’t clear that any law was broken. “To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations,” he said in a statement, “it will not succeed. The work of the court will not be affected in any way.”
Let’s remember that draft opinions are just that — drafts. Justices sometimes change their initial votes and compromises temper first conclusions. The logic guiding the timing of the leak is unclear, given that the final opinion will be officially released anyway in the coming weeks. What is to be gained by this egregious internal breach of trust? The eventual ruling may vary considerably from an early draft. But that didn’t stop activists from jumping to conclusions.
It’s also worth noting that much abortion rhetoric is driven by extremists on both sides. Polls show most Americans have a more nuanced view than those advocating for abortion on demand or for an outright ban. Nationally, there is general support for legal abortion while imposing restrictions as the mother gets closer to delivery. It’s not clear that kicking the matter down to the states — which an anti-Roe ruling would do — would help or hurt either party politically.
Yet the draft opinion has so inflamed Democrats that they are again threatening to abolish the filibuster and pack the Supreme Court. This is political passion overwhelming reason. What happens if they lose control of the Senate in November, a very real possibility? Suddenly, the filibuster will be their best friend, and their rhetoric will be “updated” to reflect their changing circumstances. Ditto for expanding the Supreme Court.
As for the constitutional issues, no less a progressive icon than the late Justice Ruth Bader Ginsburg believed Roe was flawed. “The ruling, she noted in a lecture at New York University in 1992, tried to do too much, too fast — it essentially made every abortion restriction in the country at the time illegal in one fell swoop — leaving it open to fierce attacks,” Alisha Haridasani Gupta of The New York Times wrote in the wake of the justice’s death in 2020.
Justice Ginsburg respected the court as an institution. The leaker aims to destroy it. The idea that the Supreme Court, in order to be seen as “legitimate,” must be reconstructed or pressured to reach conclusions that satisfy a specific political agenda is … well, downright undemocratic.