And our race to the bottom.
In March, we ran a piece by the reporter Aaron Sibarium called “ The Takeover of America’s Legal System.” The story made the case, backed up by exhaustive reporting, that just as education and the press and medicine were being transformed from within, so too, was the law. And those who comforted themselves with the notion that the law would be a bulwark against the new dogma were in for a rude awakening. Aaron showed that the young lawyers who were entering the most elite legal institutions in the country—law firms and law schools and courts—didn’t necessarily share the ethos of those institutions. In fact, many of them explicitly seek to revolutionize them. My thoughts immediately went to this story when I saw the shocking headline last night by Politico: The Supreme Court plans to overturn Roe. We know that because someone leaked what appears to be an initial draft of the majority opinion of a decision that was expected to land in late June. You can read the entire thing here. The opinion, written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, holds that “Roe was egregiously wrong from the start.” It goes on: “We hold that Roe and Casey”—the 1992 decision that upheld Roe, which passed in 1973—“must be overruled.” More: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Less than two hours after Politico dropped the story, CNN reported that Chief Justice John Roberts does not want to overturn Roe, but was willing to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy. Who knows what could leak next. From what I can see, this is a shattering event on three levels. Substantively, politically, and institutionally. Substantively. If indeed this draft opinion becomes the law, what will it mean for American women to live in a country where Roe is overturned and abortion is kicked back to the states? What will it mean practically? What would it mean for women in the 13 states where abortion would become immediately illegal? What would it mean for the doctors who perform those abortions, including in cases of rape and incest? Or in the case of ectopic pregnancies? And other unthinkable questions. Politically. The most obvious take here is that the Democrats were in for a bruising in the midterms and this was leaked by a liberal to galvanize Democrats. Galvanize how? Perhaps to get voters to turn out as if their lives depended on it. Perhaps to pass a law before the midterms legalizing abortion. (Here’s Bernie Sanders on Twitter last night: “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”) Perhaps to reanimate the case for court-packing. Institutionally. I know several people who have clerked for the Court. And because I am, like every journalist, utterly and shamelessly nosy, I have pressed all of them to share their personal anecdotes about the mysterious men and women in black robes. Sure, they’d share fun details about pick-up basketball, or the famously warm relationship between Scalia and RBG.
