Disorder in the Court!* Of Abortion Law and Leaks in the Supreme Court
This past December the Supreme Court, the nation’s highest tribunal, heard a challenge to Mississippi’s Gestational Age Act — a law which restricts a woman’s right to an abortion after 15 weeks (except for life and health of the mother). When Scott G. Stewart, Mississippi’s Solicitor General, made his opening statement before the Supreme Court Justices it was blunt and to the point — lasting a brief one minute and twenty seconds. And what he presented in that blink of an eye moment was a full-frontal assault against the Supreme Court’s jurisprudence on abortion:
Mr. Chief Justice, and may it please the Court: Roe v. Wade and Planned Parenthood v. Casey haunt our country.
They have no basis in the Constitution.
They have no home in our history or traditions.
They’ve damaged the democratic process.
They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this Court at the center of a political battle that it can never resolve.
And 50 years on, they stand alone.
Nowhere else does this Court recognize a right to end a human life. Consider this case: The Mississippi law here prohibits abortions after 15 weeks. The law includes robust exceptions for a woman’s life and health.
It leaves months to obtain an abortion.
Yet, the courts below struck the law down.
It didn’t matter that the law apply — that the law applies when an unborn child is undeniably human, when risks to women surge, and when the common abortion procedure is brutal. The lower courts held that because the law prohibits abortions before viability, it is unconstitutional no matter what. Roe and Casey’s core holding, according to those courts, is that the people can protect an unborn girl’s life when she just barely can survive outside the womb but not any earlier when she needs a little more help.
That is the world under Roe and Casey. That is not the world the Constitution promises.
The Constitution places its trust in the people.
On hard issue after hard issue, the people make this country work.
Abortion is a hard issue.
It demands the best from all of us, not a judgment by just a few of us.
When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people. Roe and Casey have failed, but the people, if given the chance, will succeed.
This Court should overrule Roe and Casey and uphold the state’s law. I welcome the Court’s questions.
In a few short sentences, Mississippi’s Solicitor General was asking the Supreme Court to overturn nearly 50 years of precedence — or stare decisis — established in Roe v. Wade and largely affirmed in 1992 by Planned Parenthood of Southeastern Pennsylvania v. Casey. If Roe is overturned, it will open up a floodgate of restrictions or outright bans in many states. Although there have been dozens of abortion cases since Roe — from parental consent, limiting funding, waiting periods, bans on certain procedures — very few have actually called the question of whether to overturn Roe. The last major case to take the constitutionality of Roe head on was Planned Parenthood v. Casey where a divided Court upheld the constitutionality of abortion, but rejected Roe’s rigid trimester structure.
This week the Supreme Court was in the news for something that rarely happens — a preliminary draft of a majority decision in the Mississippi case was leaked to the press. And it was a bombshell. The draft leaked to the press was written by Justice Samuel Alito — a conservative justice appointed by George W. Bush and who had made it known he found the constitutional reasoning behind Roe and Casey suspect through much of his career. While Alito has been fairly consistent, what has recently changed has been the make-up of the Supreme Court. Pundits and researchers predicted that because of the addition of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — three highly partisan and polarized appointments by former president Donald Trump, with a major assist by Senate Republican leader Mitch McConnell — Roe was likely to topple outright or through a significant narrowing. President Trump made no secret that that was the goal. In other words, elections have consequences and even though prognosticators may have seen the demise of Roe’s writing on the wall, it is still a shock to read the actual writing on the official printed Supreme Court — albeit draft — page.
The political scientist and historian Robert G. McCloskey once said that the Supreme Court is the closest thing we have to a “secular papacy”(1) — a place of formality and decorum, beyond politics, and mystery. The Court’s internal process is largely shrouded in secrecy, where there are oral arguments and then the decisions are handed down often months later. It’s not much different than seeing the white smoke from the Vatican that there is a new pope, yet how it came to be is anyone’s guess. C-SPAN isn’t allowed to cover the choosing of a new Pontiff, nor the Supreme Court’s internal deliberations.
While reporters and researchers have gotten internal documents (often provided by retired justices) showing the judicial sausage making between the justices — like Bob Woodward (yes, the Bob Woodward of Watergate fame) and Scott Armstrong’s excellent book, The Brethren: Inside the Supreme Court — they have often been retrospective looks at the Court’s Albany-like highly secretive decision-making process. What makes the current situation unique is that it is exceedingly unusual for the internal Court sausage making of a decision to be made public as it is happening, especially one that is front and center in the culture wars.
We have no way of knowing who is in the majority for the Mississippi case, but the speculation is that Justice Alito is joined by Justice Clarence Thomas and the three Trump appointees. Chief Justice John Roberts, George W. Bush’s other selection to the Court, was forced to put out a statement confirming that the draft opinion was authentic, but cautioned that it was a draft and was subject to change. Speculation on Chief Justice Robert’s position was that he has been trying to avoid overturning Roe outright by navigating a potential compromise which would uphold the central finding of Roe while also narrowing the constitutional scope and validating Mississippi’s law.
There has been an avalanche of analysis already written on the affair, but permit me to focus on one piece that strikes at the heart of the Court’s legitimacy. The Court is supposed to be above the political fray. If leaks like this are normalized, they could have an adverse impact on the Court’s decision-making process and authority.
On one hand, many on the political Left have argued that the leak isn’t the issue, the substance of the case is what is most important. They have a legitimate point because arguing over abstract legal processes is cold comfort for any woman who will face severe restrictions or bans in their state should Roe be overturned. Not only would Alito’s opinion be a seismic shift on abortion policy should it prevail, it has the potential of extending beyond abortion to other areas, like same sex marriage and contraception.
On the other hand, many on the political Right have focused on the leak while playing down the substance of the actual draft and dismissing concerns of additional rights being put at risk as a result. This side claims it was someone opposed to Alito’s opinion on the Left who was the transgressor. But, many of these protestations by the Right have the ring of the “doth protest too much, methinks.” As New York Times columnist Adam Liptak recently ventured, the leaker could have been one who supported the hard-core unapologetic Alito position and they leaked it as a way to lock in the other justices so they would not stray. But until the investigation into the Court’s Deep Throat is finished, we will not know (or may never know) who did it and why.
Both Process and Substance Matter
But form and substance are not mutually exclusive issues because often they feed into one another.
If such a cynical leak was made in order to scare other justices from straying from the draft opinion, it could make the Court’s internal process of navigating and compromising on cases more difficult, especially on narrowly decided 5 to 4 cases. This could hurt any chance of Chief Justice Roberts attempting to forge an alternative path to Alito’s majority — if that was the actual state of play.
Three political scientists — Forrest Maltzman, James Spriggs II, and Paul Wahlbeck — wrote an important book, Crafting Law on the Supreme Court: The Collegial Game, where they found justices are often strategic in how they advance their judicial preferences. Their research used a complex statistical model to reinforce other similar studies, like distinguished political scientist Walter F. Murphy’s 1965 classic, Elements of Judicial Strategy which also found justices use various strategic tactics to achieve their desired outcome. But it takes agreeing to the internal rules of the game and if broken, could fracture the established process of the Court. The leak could have been intended as a disruptive force in order to break the rhythm of the process and trust among justices.
I’ll give you an example to illustrate the point from Maltzman, Spriggs, and Wahlbeck’s book. One of the Supreme Court’s most liberal justices, William Brennan, was a strong proponent of an individual’s Miranda rights (for those who watch Law & Order, it’s when law enforcement must say “you have a right to remain silent…”). Yet decades after the groundbreaking case Miranda v. Arizona, Brennan sided with the more conservative members of the Court to restrict the application of Miranda rights by law enforcement. On its face Brennan’s move was perplexing. But when reviewing Brennan’s internal memos, notes, and letters, it become crystal clear why he did what he did. Brennan privately wrote to his other liberal colleague on the Court, Thurgood Marshall, stating that he “made the strategic judgment to concede the existence of an exception [to Miranda] but to use my control over the opinion to define the exception as narrowly as possible.”(2)
Justice Brennan’s first draft underwent several major revisions with more conservative Justices, like Sandra Day O’Connor, threatening to withhold their support without changes. But Brennan was able to control the draft. This back and forth of the process was critical for Brennan to land the plane that also protected the core of Miranda. He could have simply dissented, but he made a strategic choice. However, if all of this was aired out in public while Brennan was going back and forth with his more conservative colleagues, who knows if he would have made this choice and we could have ended with more restrictions to Miranda.
The leaked Alito majority opinion was a first draft, likely done after the initial conference voting on whether to overturn Roe or not. It’s unadulterated Alito and his language is reminiscent of President Harry Truman’s practice of writing scathing letters to critics but then sticking them in his desk drawer, left unsent, and following up with a more measured tone. Given Alito was writing a majority opinion, it is clear there are at least five justices (the bare majority) necessary to overturn Roe once and for all, but it’s unclear how the likely majority has thus far reacted to the draft. Did they put it in the drawer, like a Truman letter, or given it was leaked to the press, is it in the ballpark of where the majority is? Does the leak make them go back to an earlier draft? Only time will tell.
What Does it All Mean for the Supreme Court?
In The Federalist Papers: Number 78, Alexander Hamilton provides the vision of the judiciary for the new nation — something distinct from the legislative and executive branches because, as he argued, the executive and legislative branches should not judge themselves. Hamilton, therefore, argued in favor of “complete independence of the courts of justice.”
Although the judiciary was essential, Hamilton, relying on the patron saint of the separation of powers theory — Montesquieu(3) — recognized that the judiciary would be the “weakest” of the branches because, “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment…” If you don’t have an army to fight your battles and enforce your decisions or money to back up your rules, your words and reasoning should be pretty darn convincing to people. And if the judiciary goes too far, their “judgment” could be set aside and ignored — something that has happened on more than one occasion in the nation’s history.
If I was a betting man, given the limitation of the power of the Court in our system of government as compared to the other branches, the Court’s legitimacy is a major concern of Chief Justice Roberts. Roberts may politically be a big “C” Conservative, but he is also a small “c” conservative judicial institutionalist where things such as precedence have meaning. After all, Roberts joined the liberals on the Court in a 5–4 decision that saved the Affordable Care Act — Obamacare — much to the chagrin of political conservatives.
This week, Roberts in a speech said “We will go about doing our work as we would in any event, regardless of the leak” but it had that Naked Gun’s Frank Drebin “nothing to see here” ring to it — portraying calm while chaos ensues.
If the public loses confidence in the Court, it could do irreparable harm. Chief Justice Roberts recognizes this, so it isn’t simply about voting your preference, it’s protecting the Court’s authority as well. The Supreme Court’s legitimacy is forged by its judgment and if the people question it, then the Court’s power and influence wanes.
The Court’s decision in Scott v. Sandford — the 1857 case that ruled that Americans of African descent whether free or enslaved were not citizens — left a black eye on the Court. As Jeffrey Segal (from the great SUNY Stony Brook University) and Harold Spaeth said, “Not only did the decision precipitate the Civil War, the self-inflicted wound that the ruling produced all but destroyed the public’s perception of the Court as objective, dispassionate, and impartial.”(4)
And recently — even before the leak — the Supreme Court was already facing an uphill battle for winning the hearts and minds of the public. Over the past several years, public of approval of the Court has declined considerably with more than half of Americans holding a negative view of the Court and only 40% approving of the Court — a new low. That should be cause for concern.
That’s why, as many political scientists and researchers have found, the Court doesn’t shy too far away from prevailing public sentiment. Public confidence in the Supreme Court is essential to an influential Court. As political scientist David G. Barnum found in his study, “The Supreme Court and Public Opinion: Judicial Decision Making in the Post-New Deal Period,” when the Court did expand constitutional rights there was often national public support for it.(5) Barnum does find some notable exceptions, like Brown v. Board of Education which called for desegregated schools. Although Barnum found “some evidence that the Court was in step with preexisting trends in nationwide public opinion on the issues of school desegregation”(6) at the time, there wasn’t a national majority of support and there was strong opposition in Southern states. That is why Chief Justice Earl Warren wanted a united Supreme Court and a unanimous decision in Brown v. Board of Education in order to demonstrate the Court was firmly together and unified. Even so, although the Supreme Court set the course of ending school desegregation, it did not end it. The struggle to integrate schools has been a long and difficult process.
As the chart below illustrates, there is currently broad national support for Roe. To the significant portion of the nation that do not want Roe v. Wade overturned, Justice’s Alito’s first draft is a nuclear bomb on abortion jurisprudence. And unlike a unified Court in Brown v. Board of Education, the coming decision in the Mississippi case is likely to be closely split.
If you put the current Alito draft decision in context with the Court’s approach in the last major challenge to abortion, Planned Parenthood v. Casey it further illustrates how out of step his draft is. In Casey, the Court preserved Roe but also upheld many of the restrictions imposed by various states, such as the 24-hour waiting period — something the Supreme Court initially rejected.
Even though there is broad national public support for preserving Roe, certain restrictions are also widely supported. For instance, according to a Gallup Poll when Casey was argued in 1992, 73% of the nation supported waiting periods, while only 23% opposed. Even polls as late as 2011 show similar support for waiting periods (71% in favor, 27% oppose). I’m not arguing the Court follows polling, but it is mindful of public sentiment.(7) In Casey, the Court was more aligned with the public than Alito’s first draft.(8)
As three Republican-appointed Justices wrote for the Court in Casey, “After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.” A focus on institutional integrity is critical because without it, an individual justice’s policy preferences may not matter if the Court holds no sway or influence with the public. A pressure campaign in the form of a leak from within to potentially impact Court deliberations on a case of this magnitude could affect the institutional integrity of the Court if it becomes the norm.
Why? Put aside the hyper-partisan chest beating signaling about the leak, but the Court’s process does matter because it has an impact on the substance and outcomes of cases. Pulling the curtain back on the Court’s deliberative process mid case is the exact opposite of how an institutionalist such as Chief Justice Roberts likes to operate because the secular papacy could begin to crumble. That is why this week’s disorder in the Court is not only a potentially catastrophic blow for a woman’s right to choose, but it’s ultimately bad for the long-term legitimacy of the Court.
Notes
*Courtesy of the Three Stooges, “Disorder in the Court” (1936)
(1) Robert G. McCloskey, The American Supreme Court, The University of Chicago Press (1960), 2nd Edition, pg xi.
(2) Maltzman, Spriggs, and Wahlbeck, Crafting the Law on the Supreme Court: The Collegial Game, Cambridge University Press (2000) at page 3.
(3) Hamilton noted in Federalist 78 that Montesquieu stated in his seminal work Spirit of the Laws that, “Of the three powers above mentioned, the judiciary is next to nothing.”
(4) Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model, Cambridge University Press (1993) at 83.
(5) David G. Barnum, “The Supreme Court and Public Opinion: Judicial Decision Making in the Post- New Deal Period” The Journal of Politics, Vol. 47, №2 (Jun., 1985), pp. 652–666.
(6) Barnum at pg 657.
(7) I fully recognize that abortion policy is mostly fought on a state and local level and not based on national polls so support and opposition is unevenly distributed across the country.
(8) Of course, this is the flip side of Barnum’s analysis — the Court would be taking away a constitutional right.
Thanks to Heather Trela for providing invaluable comments to this piece.
