Brett Kavanaugh told us this was going to happen.
With his lip trembling, Kavanaugh warned Democrats on the Senate Judiciary Committee in 2018 that they had “sowed the wind” and the “whole country will reap the whirlwind.”
The wind kicked up last week when the Supreme Court’s carefully constructed veil of judicial mystery was torn in two, revealing the hardball politics that go on inside the Holy of Holies.
The Supreme Court, which never leaks, somehow allowed a draft opinion on Dobbs v. Jackson Women’s Health out for public review. Published by Politico on May 2, the draft indicated that there are five votes on the court to use Mississippi’s ban on abortions after 15 weeks of gestation to throw out 49 years of legal precedent and let state legislatures decide when a woman should be forced to have a baby.
The draft, authored by Justice Samuel Alito, called Roe v. Wade “egregiously wrong from the start” because it was grounded in the right to privacy, words that don’t appear in the Constitution. Since many other Supreme Court precedents – including those that stop states from banning birth control or relations between consenting adults of the same sex – also rely on the right to privacy, the leaked opinion unleashed terror in some quarters and ecstasy in others about the dawn of an American theocracy, where minority religious views are imposed on everyone and enforced by the state.
Maine Sen. Susan Collins has become a national laughingstock for supporting two of the Alito five, Kavanaugh and Neil Gorsuch, after claiming that they assured her that they would not overturn Roe v Wade because they respected precedent.
People think she’s stupid for failing to see something so obvious, but she’s not stupid. Let’s be fair: She’s lying.
She knows the Supreme Court is a political wrestling ring with costumes and fancy language. She went through the ritual of grilling the nominees in her office, just like she ritually claims to support women’s rights on the campaign trail. But her interests lie elsewhere – like the chairmanship of the Senate Appropriations Committee – and the gavel won’t be there for her if her side doesn’t win.
It’s hard to know what to make of the substance of the leak. Few of us have ever seen a draft opinion and don’t know how much they change before they reach final form.
But leaks don’t happen by accident. Someone inside the court wanted to influence a process that’s still playing out. What were they trying to do? A suspiciously well-informed April 26 editorial in the conservative Wall Street Journal suggests an answer.
The editors speculate that Chief Justice John Roberts is trying to peel off one of the five votes to join him and the court’s three liberals in backing a narrower ruling that would uphold Roe as precedent, while also making Mississippi’s ban on abortions after 15 weeks stand as the new allowable limit for state restrictions.
If Roberts can’t assemble a majority, the editors write, “then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.”
That’s either some very good guessing or somebody has been talking to the Journal. Letting the activists who have been working tirelessly for decades to overturn Roe know that their ultimate victory is in sight puts tremendous pressure on any of the five who might be tempted to join the chief.
That is, if they are human beings who want to be loved and invited on junkets to speak to conservative groups on topics like “originalism” and “judicial restraint,” and not members of some weird apolitical priesthood who work in a temple where they channel the spirits of the Founders.
Whether the Republican justices go big and eliminate the entire right to privacy, or focus on a narrow ruling that lets them continue to chip away at a woman’s right to choose, the court has been exposed as a mini-legislature that can do with five votes what the Senate can’t do with 50.
Republicans say that the Supreme Court nomination process was poisoned in 1987, when the Senate rejected Robert Bork because most Democrats and some Republicans found his legal philosophy to be extreme.
Since then, nominees have learned to hide their politics until after they are sworn in. In 2017, the Republican Senate got rid of the 60-vote threshold for Supreme Court confirmations, allowing Donald Trump – who promised to appoint only anti-abortion judges – to force three of Alito’s five onto the court on near party-line votes, something that had never happened until then.
The process wasn’t pretty, but it worked. And as Kavanaugh said in his Senate testimony, “as we all know in the United States political system of the early 2000s, what goes around comes around.”
We can’t say he didn’t warn us. The Temple veil has been torn. Time to reap the whirlwind.
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