What the Supreme Court Leak Means

And what has happened to Chief Justice Roberts, anyway?

Old Joe Biden said Tuesday that Justice Samuel Alito’s leaked draft majority opinion overturning Roe v. Wade was “really quite a radical decision” and “a fundamental shift in American jurisprudence,” but as usual, he was lying. Alito’s decision appears to be carefully reasoned, firmly based on what the Constitution actually says, and written with a full recognition of the nature and importance of judicial precedent. What is unprecedented is the leak that has allowed us to evaluate this decision before the Court has actually ruled on the case at hand, Dobbs v. Jackson Women’s Health Organization. That is the key aspect of this incident for what it reveals about the state of American public life today, the cardinal importance of abortion for the Left, and what might happen next.

As Chief Justice John Roberts stated, “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” NPR legal affairs correspondent, Nina Totenberg, explained: “No fully-formed draft opinion has been leaked to the press or outside the court. Once or twice there may have been leaks that say how is something is going to turn out, or after-the-fact that somebody may have changed his or her mind. But this is a full-flown, Pentagon Papers-type compromise of the court’s work.” She added that while the leak wasn’t illegal, “it’s a career-ender for whoever did.”

Maybe it is. But maybe not. The leaker, once he or she is found, will without any doubt be lionized as a hero on the Left for allowing for what Daniel Greenfield called an attempt to “intimidate the Supreme Court” with “narratives, protests, and threats.” This is the Left that has likened violent and destructive Antifa thugs to the American heroes who stormed the Normandy beaches. This is the Left that has so much contempt for American history that it was torn down or overseen the removal of statues of Thomas Jefferson, Abraham Lincoln, and Ulysses S. Grant. This is the Left that has made it abundantly clear that it intends to “fundamentally transform the country,” as Old Joe promised to do in May 2020, echoing Barack Obama’s 2008 pledge.

Leftists today have repeatedly demonstrated their hatred for America’s heritage, laws, traditions, and Constitution. Why should they respect the time-hallowed custom of preserving the secrecy of unpublished Supreme Court documents, or punish the person responsible, especially when that person’s actions have helped them further their agenda? A vote to overturn Roe v. Wade would likely be five to four; only one Justice has to be threatened or frightened into changing his or her vote for the Left’s sacrament, the centerpiece of its worship of radical individualism and personal autonomy, and its refusal to accept biological reality, to be preserved. The person who would be responsible for that Justice changing his or her vote would be hailed with more gusto and fervor than the Left hailed even George Floyd, or Huey P. Newton, or Julius and Ethel Rosenberg, or Alger Hiss.

And now Barack Obama has called for protests: “We’re asking you to join with the activists who’ve been sounding the alarm on this issue for years and act. Stand with them at a local protest. Volunteer with them on a campaign. Join with them in urging Congress to codify Roe into law.” The intimidation will begin. Chief Justice Roberts, however, insists that it won’t work: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.”

Maybe it won’t. But what has happened to Roberts himself? He was placed on the Court as a conservative. In his early years, he voted with conservative stalwarts Antonin Scalia and Clarence Thomas. But over the years, something has changed. By June 2020, Roberts had essentially transformed himself into another vote for the Left on the Court. ABC News reported that Roberts “voted with the progressive wing on abortion, immigration and Title VII,” and that consequently, “some outraged legal conservatives have accused Roberts, who was appointed by Republican President George W. Bush, of betrayal.”

No one knows why Roberts turned, but it’s noteworthy that like so many other conservatives when they get to Washington, he did. One rarely, if ever, sees the opposite phenomenon: a prominent politician getting elected, or chosen for the Court, as a Leftist, and then moving rightward. Why? Will the intimidation and threats we will certainly see now be the first? Unlikely. Or is it simply a matter of not getting invited to the best parties in Washington, and shunned by the in-crowd?

Whatever it is, it’s a terrible way to legislate, and to adjudicate. Whatever happens now, it is likely to take us to even newer lows.

Robert Spencer is the director of Jihad Watch and a Shillman Fellow at the David Horowitz Freedom Center. He is author of 23 books including many bestsellers, such as The Politically Incorrect Guide to Islam (and the Crusades)The Truth About Muhammad and The History of Jihad. His latest book is The Critical Qur’an. Follow him on Twitter here. Like him on Facebook here.


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