Leaks: US Supreme Court Staffer Leaks Roe v Wade... WitchHunt Protests Police Ensue

[grarpamp]

"An Anti-Majoritarian Check" - Exposing The Radical Fallacies Of
SCOTUS Hyperbole

https://greenwald.substack.com/p/the-irrational-misguided-discourse
https://www.oyez.org/cases/2021/19-1392
https://usa.usembassy.de/etexts/democrac/7.htm
https://www.oyez.org/cases/1789-1850/5us137

Politico on Monday night published what certainly appears to be a
genuine draft decision by Supreme Court Justice Samuel Alito that
would overturn the Court's 1973 decision in Roe v. Wade. Alito's draft
ruling would decide the pending case of Dobbs v. Jackson Women's
Health Organization, which concerns the constitutionality of a 2018
Mississippi law that bans abortions after fifteen weeks of pregnancy
except in the case of medical emergency or severe fetal abnormalities.
Given existing Supreme Court precedent that abortion can only be
restricted after fetal viability, Mississippi's ban on abortions after
the 15th week — at a point when the fetus is not yet deemed viable —
is constitutionally dubious. To uphold Mississippi's law — as six of
the nine Justices reportedly wish to do — the Court must either find
that the law is consistent with existing abortion precedent, or
acknowledge that it conflicts with existing precedent and then
overrule that precedent on the ground that it was wrongly decided.
Protesters gather outside the U.S. Supreme Court on May 03, 2022, in
Washington, DC, after a leaked initial draft majority opinion obtained
by Politico, in which Supreme Court Justice Samuel Alito allegedly
wrote for the Court's majority that Roe v. Wade should be overturned
(Photo by Anna Moneymaker/Getty Images)

Alito's draft is written as a majority opinion, suggesting that at
least five of the Court's justices — a majority — voted after oral
argument in Dobbs to overrule Roe on the ground that it was
“egregiously wrong from the start” and “deeply damaging.” In an
extremely rare event for the Court, an unknown person with unknown
motives leaked the draft opinion to Politico, which justifiably
published it. A subsequent leak to CNN on Monday night claimed that
the five justices in favor of overruling Roe were Bush 43 appointee
Alito, Bush 41 appointee Clarence Thomas, and three Trump appointees
(Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), while Chief
Justice Roberts, appointed by Bush 43, is prepared to uphold the
constitutionality of Mississippi's abortion law without overruling
Roe.

Draft rulings and even justices’ votes sometimes change in the period
between the initial vote after oral argument and the issuance of the
final decision. Depending on whom you choose to believe, this leak is
either the work of a liberal justice or clerk designed to engender
political pressure on the justices so that at least one abandons their
intention to overrule Roe, or it came from a conservative justice or
clerk, designed to make it very difficult for one of the justices in
the majority to switch sides. Whatever the leaker's motives, a
decision to overrule this 49-year-old precedent, one of the most
controversial in the Court's history, would be one of the most
significant judicial decisions issued in decades. The reaction to this
leak — like the reaction to the initial ruling in Roe back in 1973 —
was intense and strident, and will likely only escalate once the
ruling is formally issued.

Every time there is a controversy regarding a Supreme Court ruling,
the same set of radical fallacies emerges regarding the role of the
Court, the Constitution and how the American republic is designed to
function. Each time the Court invalidates a democratically elected law
on the ground that it violates a constitutional guarantee — as
happened in Roe — those who favor the invalidated law proclaim that
something “undemocratic” has transpired, that it is a form of
“judicial tyranny” for “five unelected judges” to overturn the will of
the majority. Conversely, when the Court refuses to invalidate a
democratically elected law, those who regard that law as pernicious,
as an attack on fundamental rights, accuse the Court of failing to
protect vulnerable individuals.

This by-now-reflexive discourse about the Supreme Court ignores its
core function. Like the U.S. Constitution itself, the Court is
designed to be an anti-majoritarian check against the excesses of
majoritarian sentiment. The Founders wanted to establish a democracy
that empowered majorities of citizens to choose their leaders, but
also feared that majorities would be inclined to coalesce around
unjust laws that would deprive basic rights, and thus sought to impose
limits on the power of majorities as well.

The Federalist Papers are full of discussions about the dangers of
majoritarian excesses. The most famous of those is James Madison's
Federalist 10, where he warns of "factions…who are united and actuated
by some common impulse of passion, or of interest, adverse to the
rights of other citizens, or to the permanent and aggregate interests
of the community.” One of the primary concerns in designing the new
American republic, if not the chief concern, was how to balance the
need to establish rule by the majority (democracy) with the equally
compelling need to restrain majorities from veering into impassioned,
self-interested attacks on the rights of minorities (republican
government). As Madison put it: “To secure the public good, and
private rights, against the danger of such a faction, and at the same
time to preserve the spirit and the form of popular government, is
then the great object to which our enquiries are directed.” Indeed,
the key difference between a pure democracy and a republic is that the
rights of the majority are unrestricted in the former, but are limited
in the latter. The point of the Constitution, and ultimately the
Supreme Court, was to establish a republic, not a pure democracy, that
would place limits on the power of majorities.

Thus, the purpose of the Bill of Rights is fundamentally
anti-democratic and anti-majoritarian. It bars majorities from
enacting laws that infringe on the fundamental rights of minorities.
Thus, in the U.S., it does not matter if 80% or 90% of Americans
support a law to restrict free speech, or ban the free exercise of a
particular religion, or imprison someone without due process, or
subject a particularly despised criminal to cruel and unusual
punishment. Such laws can never be validly enacted. The Constitution
deprives the majority of the power to engage in such acts regardless
of how popular they might be.

And at least since the 1803 ruling in Madison v. Marbury which
established the Supreme Court's power of "judicial review” — i.e., to
strike down laws supported by majorities and enacted democratically if
such laws violate the rights guaranteed by the Constitution — the
Supreme Court itself is intended to uphold similarly anti-majoritarian
and anti-democratic values.

When the Court strikes down a law that majorities support, it may be a
form of judicial tyranny if the invalidated law does not violate any
actual rights enshrined in the Constitution. But the mere judicial act
of invalidating a law supported by a majority of citizens — though
frequently condemned as “undemocratic" — is, in fact, a fulfillment of
one of the Court's prime functions in a republic.

Unless one believes that the will of the majority should always
prevail — that laws restricting or abolishing free speech, due process
and the free exercise of religion should be permitted as long as
enough citizens support it — then one must favor the Supreme Court's
anti-democratic and anti-majoritarian powers. Rights can be violated
by a small handful of tyrants, but they can also be violated by
hateful and unhinged majorities. The Founders’ fear of majoritarian
tyranny is why the U.S. was created as a republic rather than a pure
democracy.

Whether the Court is acting properly or despotically when it strikes
down a democratically elected law, or otherwise acts contrary to the
will of the majority, depends upon only one question: whether the law
in question violates a right guaranteed by the Constitution. A
meaningful assessment of the Court's decisions is impossible without
reference to that question. Yet each time the Court acts in a
controversial case, judgments are applied without any consideration of
that core question.

The reaction to Monday night's news that the Court intends to overrule
Roe was immediately driven by all of these common fallacies. It was
bizarre to watch liberals accuse the Court of acting
“undemocratically" as they denounced the ability of "five unelected
aristocrats” — in the words of Vox's Ian Millhiser — to decide the
question of abortion rights. Who do they think decided Roe in the
first place?

Indeed, Millhiser's argument here — unelected Supreme Court Justices
have no business mucking around in abortion rights — is supremely
ironic given that it was unelected judges who issued Roe back in 1973,
in the process striking down numerous democratically elected laws.
Worse, this rhetoric perfectly echoes the arguments which opponents of
Roe have made for decades: namely, it is the democratic process, not
unelected judges, which should determine what, if any, limits will be
placed on the legal ability to provide or obtain an abortion. Indeed,
Roe was the classic expression of the above-described
anti-majoritarian and anti-democratic values: seven unelected men (for
those who believe such demographic attributes matter) struck down laws
that had been supported by majorities and enacted by many states which
heavily restricted or outright banned abortion procedures. The sole
purpose of Roe was to deny citizens the right to enact the
anti-abortion laws, no matter how much popular support they commanded.

This extreme confusion embedded in heated debates over the Supreme
Court was perhaps most vividly illustrated last night by Waleed
Shahid, the popular left-wing activist, current spokesman for the
left-wing group Justice Democrats, and previously a top aide and
advisor to Squad members including Rep. Alexandria Ocasio-Cortez.
Shahid — who, needless to say, supports Roe — posted a quote from
Abraham Lincoln's first inaugural address, in 1861, which Shahid
evidently believes supports his view that Roe must be upheld.

But the quote from Lincoln — warning that the Court must not become
the primary institution that decides controversial political questions
— does not support Roe at all; indeed, Lincoln's argument is the one
most often cited in favor of overruling Roe. In fact, Lincoln's
argument is the primary one on which Alito relied in the draft opinion
to justify overruling Roe: namely, that democracy will be imperiled,
and the people will cease to be their own rulers, if the Supreme
Court, rather than the legislative branches, ends up deciding
hot-button political questions such as abortion about which the
Constitution is silent. Here's the version of the Lincoln
pro-democracy quote, complete with bolded words, that Shahid posted,
apparently in the belief that it somehow supports upholding Roe:

It is just inexplicable to cite this Lincoln quote as a defense of
Roe. Just look at what Lincoln said: “if the policy of the government,
upon vital questions affecting the whole people, is to be irrevocably
fixed by decisions of the Supreme Court, [then] the people will have
ceased to be their own rulers.” That is exactly the argument that has
been made by pro-life activists for years against Roe, and it
perfectly tracks Alito's primary view as defended in his draft
opinion.

Alito's decision, if it becomes the Court's ruling, would not itself
ban abortions. It would instead lift the judicial prohibition on the
ability of states to enact laws restricting or banning abortions. In
other words, it would take this highly controversial question of
abortion and remove it from the Court's purview and restore it to
federal and state legislatures to decide it. One cannot defend Roe by
invoking the values of democracy or majoritarian will. Roe was the
classic case of a Supreme Court ruling that denied the right of
majorities to decide what laws should govern their lives and their
society.

One can defend Roe only by explicitly defending anti-majoritarian and
anti-democratic values: namely, that the abortion question should be
decided by a panel of unelected judges, not by the people or their
elected representatives. The defense of democracy invoked by Lincoln,
and championed by Shahid, can be used only to advocate that this
abortion debate should be returned to the democratic processes, which
is precisely what Alito argued (emphasis added):

    Abortion presents a profound moral issue on which Americans hold
sharply conflicting views. Some believe fervently that a human person
comes into being at conception and that abortion ends an innocent
life. Others feel just as strongly that any regulation of abortion
invades a woman's right to control her own body and prevents women
from achieving full equality. Still others in a third group think that
abortion should be allowed under some but not all circumstances, and
those within this group hold a variety of views about the particular
restrictions that should be imposed.

    For the first 185 years after the adoption of the Constitution,
each State was permitted to address this issue in accordance with the
views of its citizens. Then, in 1973, this Court decided Roe v.
Wade….At the time of Roe, 30 States still prohibited abortion at all
stages. In the years prior to that decision, about a third of the
States had liberalized their laws, but Roe abruptly ended that
political process. It imposed the same highly restrictive regime on
the entire Nation, and it effectively struck down the abortion laws of
every single State. As Justice Byron White aptly put it in his
dissent, the decision Court represented the “exercise of raw judicial
power,” 410 U. S., at 222….

    Roe was egregiously wrong from the start. Its reasoning was
exceptionally weak, and the decision has had damaging
consequences…..It is time to heed the Constitution and return the
issue of abortion to the people's elected representatives. “The
permissibility of abortion, and the limitations, upon it, are to be
resolved like most important questions in our democracy: by citizens
trying to persuade one another and then voting.” Casey, 505 U.S. at
979 (Scalia, J, concurring in the judgment in part and dissenting in
part). That is what tho Constitution and the rule of law demand.

Rhetoric that heralds the values of democracy and warns of the tyranny
of “unelected judges” and the like is not a rational or viable way to
defend Roe. That abortion rights should be decided democratically
rather than by a secret tribunal of "unelected men in robes" is and
always has been the anti-Roe argument. The right of the people to
decide, rather than judges, is the primary value which Alito
repeatedly invokes in defending the overruling of Roe and once again
empowering citizens, through their elected representatives, to make
these decisions.

The only way Roe can be defended is through an explicit appeal to the
virtues of the anti-democratic and anti-majoritarian principles
enshrined in the Constitution: namely, that because the Constitution
guarantees the right to have an abortion (though a more generalized
right of privacy), then majorities are stripped of the power to enact
laws restricting it. Few people like to admit that their preferred
views depend upon a denial of the rights of the majority to decide, or
that their position is steeped in anti-democratic values. But there is
and always has been a crucial role for such values in the proper
functioning of the United States and especially the protection of
minority rights. If you want to rant about the supremacy and sanctity
of democracy and the evils of "unelected judges,” then you will
necessarily end up on the side of Justice Alito and the other four
justices who appear ready to overrule Roe.

Anti-Roe judges are the ones who believe that abortion rights should
be determined through majority will and the democratic process. Roe
itself was the ultimate denial, the negation, of unrestrained
democracy and majoritarian will. As in all cases, whether Roe's
anti-democratic ruling was an affirmation of fundamental rights or a
form of judicial tyranny depends solely on whether one believes that
the Constitution bars the enactment of laws which restrict abortion or
whether it is silent on that question. But as distasteful as it might
be to some, the only way to defend Roe is to acknowledge that your
view is that the will of the majority is irrelevant to this conflict,
that elected representatives have no power to decide these questions,
and that all debates about abortion must be entrusted solely to
unelected judges to authoritatively decide them without regard to what
majorities believe or want.

For those interested, I've given numerous speeches over the years
about the anti-majoritarian and anti-democratic values embedded in the
Constitution and the Court, including this 2011 lecture at the
University of Maryland, this 2012 speech at the University of
Indiana/Purdue University, and this 2013 lecture at Yale Law School.