A week ago Monday, Politico shook the world of media, politics, policy, and the nation with its now-infamous leak of a February draft opinion of the United States Supreme Court. Chief Justice John Roberts confirmed the leak in an angry response and warned of two things.
The opinion was a draft, and the justices had not yet voted on the outcome, so the initial 5-4 verdict in favor of overturning Roe was just speculation. Second, he commissioned an internal inquiry to find out the leaker’s identity so that the Court could punish them.
What followed highlighted the stark differences confronting the nation – in ideology, hypocrisy, respect for tradition, and tactics – that unfortunately will bedevil us for decades to come.
The story broke down into two parts: the leak itself and the possibility that the Court could find Roe unconstitutional.
The White House gave the green light to the Left to play down the leak and accentuate the latter. “I don’t think we have a particular view on [leaking], other than to say we certainly note the unprecedented nature of it,” Jen Psaki, the press secretary, said. “Our focus is not losing sight of what the content is in the draft and what is at risk here.”
Over at the House, Rep. Adam Schiff (D-Calif.), the J6 Commission and rule-of-law purist when it suits him, went even further. “I don’t care how the draft leaked. That’s a sideshow,” he tweeted. “What I care about is that a small number of conservative justices, who lied about their plans to the Senate, intend to deprive millions of women of reproductive care.”
Liberal media outlets, delighted that a wedge issue was again brewing, went to work to provide cover for the Left’s shocking position. Was the leak illegal? Could it be prosecuted? Was it unethical?
Reuters commissioned a fact-checking story of “experts.” “Drafts of Supreme Court opinions are not classified documents like national security files,” said the University of California, Berkeley criminal law professor Orin Kerr, ruling out prosecutions. But Kerr maintained that the person could be disbarred if the leaker were a lawyer, a far-lower penalty.
Not so fast, other experts chimed in.
The signaling was explicit. There would be no negative consequences for the leaker whatsoever. If the leaker remained anonymous – remember how Schiff vigorously protected the identity of the “Whistleblower” in Trump’s first impeachment – they still stood to gain enormously, perhaps by writing an anonymous tell-all book and winning the gratitude of the pro-choice movement for generations.
The lack of morality of the leaker or how the leak had wrecked confidence in the only noble institution remaining in Washington became irrelevant. That the leak completed the Court’s politicization meant nothing. The probability of violence as nationwide protests spawned, including intimidating the offending justices in front of their homes, was shrugged off as the price to pay in a fair fight.
As expected, social media erupted to drive the action. WISN 12 News showed a video of Iowa middle schoolers walking out in protest. Forgive us for thinking these weeks were dedicated to preparing for end-of-term finals.
One threatening tweet said, “If Kavanaugh doesn’t like the pro-abortion protests outside his house, he can simply drive or relocate to a different state, right?” This message had 276,000 likes and was retweeted 30,000 times. Twitter censors meekly played along, not suspending the account.
Some conservatives fought back to highlight the Left’s hypocrisy, but they were drowned out. A pro-lifer tweeted: “Just imagine if pro-life activists published a map with Ruth Bader Ginsburg’s address, urged frenzied, panicking pro-lifers to go to her home and protest over abortion, and the Trump administration merely told the media, “The president’s view is that there is a lot of passion.”
So, what did Justice Alito’s majority opinion say? “We hold that Roe and Casey must be overruled ..it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
A 5-4 majority, in a draft opinion, was not saying that abortions would be illegal. They were arguing that there is no federal constitutional protection afforded to abortion. In the spirit of federalism, where state’s rights are paramount, each state could decide how much to allow or restrict abortion. Mississippi could outlaw abortions after 15 weeks. Some states could allow exceptions for rape and incest. Others could restrict exceptions to severe fetal abnormalities. Such an approach would be no different from each state’s own rules about K-12 education, marriage, divorce, and police.
Rather than appreciate the elegance of the opinion, the Left decided to do what it always does best – organize protests with such overwhelming force to subdue all debate. Think BLM, the Georgia voter law, trans laws, and CRT. Sen. Marco Rubio, Florida Republican, said it best. “The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions & norms, remember how they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion.”
Our latest Golden/TIPPPoll of 1,320 respondents confirmed the Left’s support for the leak and, as a consequence, its aftermath. We asked, “Do you approve or disapprove of the leaking of the Supreme Court decision related to abortion?”
Overall, 53% disapproved and 29% approved. There were differences based on party and ideology:
Democrats approved 45%-38%
Republicans disapproved 69%-19%
Independents disapproved 57%-21%
Conservatives disapproved 66% to 26%
Moderates disapproved 52% to 24%
Liberals approved 44% to 43%
The New York Times has already raised trail balloons, indirectly inviting other leakers to act by promoting anxiety and tension within the Left. Adam Liptak, their Supreme Court reporter, wrote that contraception, gay intimacy, and same-sex marriage, rights established by three Supreme Court decisions, could now all be at risk.
Two weeks ago, no one would have believed that the United States Supreme Court would be at the center of dangerous discord and unrest. Accepting the Court’s rulings as the law of the land, a respected tradition that has been the world’s envy, is now at stake.
The Left’s new mantra is: If you don’t like the Court’s draft opinions, leak internal deliberations to suit your narrative and drive protests to intimidate justices to go your way. America’s founding fathers are turning in their graves.
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