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The SCOTUS Hacks Go Nuclear

The Inquisition — I mean, the Supreme Court — has dropped the big one, albeit prematurely. Chief Justice Roberts confirmed that the draft opinion overturning Roe v. Wade is indeed authentic, but it may not be final.

The Right is on the warpath vowing to prosecute whoever leaked the opinion, but it’s not clear to me that there is any law covering leaking Supreme Court opinions. It says here that if the leaker is someone with legitimate access to the documents, then there is no crime to prosecute.

It’s interesting, though, that Republican politicians immediately seized on the leak rather than the opinion itself as a source of controversy. For example, Josh Hawley: “The left continues its assault on the Supreme Court with an unprecedented breach of confidentiality, clearly meant to intimidate. The Justices mustn’t give in to this attempt to corrupt the process. Stay strong.”

We don’t know who leaked the bleeping opinion. It might have been Alito himself, for all we know. And why the leak is a cause of intimidation isn’t clear to me. Whatever is happening now is what would have happened if the opinion had been released officially. In some ways, in fact, the leakage dampers the bombshell nature of the decision just a bit. It was an advantage for the conservatives to leak it. Now the right-wing noise machine will be screaming about the leak and hope people don’t notice that the Supreme Court is about to declare that women are cows.

At Slate, Jeremy Stahl points out the pros and cons of who benefits most from the leak, and like me he sees a bigger advantage to the Right than the Left. “It turns attention away from the monumental—and likely to be deeply unpopular—ruling itself, and toward what conservatives are portraying as a dastardly and corrupt breaking of the norms.” It was a smart tactical move, in other words.

(Update: This is from emptywheel

CNN’s report suggests this leak more likely came from Roberts’ chambers than the most likely other source, Stephen Breyer’s. The most logical explanation for the leak is that Roberts is trying to get his colleagues to adopt a less radical opinion. And if that’s the purpose, it might have the desired effect, both by making it clear what a shit-show the original Alito opinion will set off, but also by exposing the opinion itself to the ridicule and contempt it, as written, deserves.

So there’s that.)

What happens next is that very soon abortion will be completely illegal in large parts of the South and Midwest, and probably other places. I expect the most conservative states to not make allowances for rape, incest, and maybe not even the health of the mother. Right wingers have argued for years that abortion is never medically necessary to save the woman, which is seriously not true. Right-wing state legislators will be tripping all over each other bragging about how draconian they can be against fertile women. 

Also note that the arguments Alito made in the leaked decision arguably could pave the way for overturning Griswold v. Connecticut (governments can’t ban contraception) and Obergefell v. Hodges (legalizing same sex marriage).

So yeah, this is serious, but not unexpected.

I’ve been predicting for years that if Roe is ever overturned, Republicans will be sorry. So now I guess we’ll find out if I was right. Historically, promises/threats to end abortion have been very good at turning out the Right but not the Left. Greg Sargent writes today,

During the 2021 gubernatorial race in Virginia, Democrats poured millions of dollars into ads highlighting the GOP candidate’s opposition to abortion. Democrats also raised the possibility that the Supreme Court might gut abortion rights, a message directed right at the Virginia suburbs.

Instead, schools dominated, and Glenn Youngkin became governor. The idea that abortion rights might be gutted in Virginia likely seemed far-fetched to many voters, as the court hadn’t acted yet and Democrats were on track to keep control of the state Senate.

Polls taken earlier this year show that the U.S. public supports Roe by huge majorities. It’s not even close. But how strongly do they support it? We’ll soon see.

In this regard, what happened in Virginia offers a warning. Democrats who worked on that race tell me that internal polling showed that Youngkin’s antiabortion stance was a big negative for voters. But, those Democrats say, getting voters to connect this with the possibility of a Supreme Court ruling overturning abortion rights was a tall order.

It’s an old lament in Democratic politics that getting voters to care about issues that turn on vague long-term threats is a serious challenge. But if the court strikes down abortion rights before November, voters in places such as Pennsylvania, Wisconsin and Michigan might see bans or severe restrictions as a more immediate threat.

According to Pew Research, younger people are more pro-Roe than older ones, so if ending Roe gets the young folks to turn out in the midterms, it could be huge. But again, that’s a big if.

So we’ll see what happens. Best case, the overturning of Roe v. Wade combined with whatever comes out in the June public January 6 hearings could cause Republicans to lose some elections. Worst case, Republicans take back Congress next year and spend the next two years investigating Hunter Biden and passing laws to ban abortion and same sex marriage nationwide, which Joe Biden will veto, but that’s all that will get done. Oh, and they’ll probably pass some more tax cuts for rich people that rich people don’t need. That’s a given.

16 thoughts on “The SCOTUS Hacks Go Nuclear

  1. Alito is like the kid in drama class who chews the scenery and ad libs.  The opinion is 60% sadism, 35% showing off, and 5% pseudophilosophy.  (At any previous time, the proportion of pseudophilosophy would have been much higher; the most lasting effect of the Trump years is that no one reads any more.  The people who ought to be worried are the right-wing vanity presses.)

    In other words, it is a performance, and an exultantly mediocre one.  The worst thing about it is that this is now what is expected.  Everything is performance and most of it is improv.  The very notion that there is a deep craft of jurisprudence, based upon synthesis and exegesis, has been replaced by Schlagwörter.  Read it again: it is composed of words, but it isn't quite language.

  2. Alito-Amy Covid Barrett Supreme Court 'To Do' List…

    Roe v Wade – Done

    Planned Parenthood v Casey – Done (2 for 1)

    Griswold v Connecticut (privacy, contraceptives)

    Obergefell v Hodges (same-sex marriage)

    Brown v Board of Education (integrated schools)



  3. "Arbeit Macht Frei."

    'Labor makes you free.

    So get to "work," ladies! 😉

    If the Democrats can't use this destruction of a critical right to hold onto the House and Senate, then I don't know what will.

    But IMO, having "Sad Sam" Alito write it is a mistake.

    But what choice does Roberts have?

    He can't write it.  Roberts knows this decision will ruin whatever reputation this Roberts SCOTUS still has.  Let somebody else kill his baby, this beautiful baby, his SCOTUS.

    He won't want to hand the writing of this heinous decision to the new kids on all-White block.  The three of them just lied about how they'll always have "Stare Decisis" in their eyes, and would never, ever go against prior decisions ("You LIE!!!!!).

    And he certainly can't leave it to Clarence Thomas!  That decision is likely to read like some Penthouse "Letter to the Editor."

    So, it's left to the simpleton, "Sad Sam" Alito.

    I bet Roberts wishes Scalia was still around.  At least that asshole provided some entertainment while he was carving up the Constitution and our rights.

    I wish I could still march.  But those days are over.  Time and health retired me.

    It's up to the rest of you now.


    • Stephen Hawkings never complained why should you.  You have Hawking's level writing skills.  What you can't do is near irreplicable.  You should get prizes, medals and more.  You might have a lot of your body that does not work well anymore, but your mind and expressive ability is enviable.  Many will never get there in their lifetime.  You are an inspiration.  You carry the load for so many as all responsible less than broadly able do.  Please keep your enlightenment shining.

      You have more than done your part and keep us lesser talents humble.  You have the vision and the expressive skills.  You are the American dream in written form in perfect synergy with she who makes this all work. Bravo.






  4. "Be Careful What You Wish For – You Might Get It!"

    For the zealots on the court, and in Congress, there is little prudence or caution. The talk is (reportedly)that some in Congress see the fall of Roe as a sign to take more political ground while they can. We may see a GOP in Congress write a federal law that bans abortion nationwide. It might pass the House in 2023 and if the Senate reverses the filibuster, pass in the Senate the same year! 

    I don't think Moscow Mitch will undo the fillibuster to "own the libs." But more and more being a GOP member of Congress is about theatrics, not legislation. I think we'll see some of the clowns in Congress try to get on Fox by talking up legislative attacks on same-sex marriage and gay rights. Smart politics would be for the GOP to grab this victory and shut up until the dust settles – not go after a national ban. 

    The relationship between Dred Scott and striking down Roe has been observed by others. Remember, Dred Scott was a WIN for the Confederacy-to-be. The USSC upheld slavery throughout the country, not just in slave states. Four years later the Civil War started and was fought to completion, freeing the slaves. Rationally, Dred Scott should have delayed the Civil War – the reaction to such injustice in the Northern states, IMO, accelerated to onset. Northern abolitionists has been around… forever but Dred Scott (and Uncle Tom's Cabin) brought the outrage into the mainstream. 

    Except for pros like Moscow Mitch, the policy of the GOP is almost exclusively to "own the libs."  And the pros in the GOP are becoming an endangered species. I expect overreach on social issues, perhaps in the nick of time for 2022. (Not a prediction, just a hope.) I think the GOP will "go big" and misjudge the reaction of suburban conservatives who aren't upset by gay rights and fundamentally see a woman's right to control over her body as pretty obvious – freedom. 

    Might democrats dodge a bullet in 2022? Suppose that they do because of wild rhetoric from the right, amplified by Fox and CNN. In a sane world, not taking control of Congress in 2022 would be a wake-up call. Not for these ding-bats. They will go for Trump in the primaries or DeSantis of Trump decides not to run. Either of them is going to go nuclear on gay rights, 'woke' librals in Hollywood, truck drivers in drag using the lady's bathroom, and school indoctrination. In the next two years, the USSC may strike down gay marriage. (According to Gallup, 70% support gay marriage – almost the same number who support legalized abortion in some form)

    If the pendulum swings the other way in elections, in 2022 & 2024, I expect violence. This will amplify the swing towards non-wingnut candidates and the GOP is going to primary out any non-wingnut candidates. The USSC can't remain intact if abortion rights are to be restored, contraception protects, and gay rights made permanent.  So the idea of packing the court has to become mainstream – or at least acceptable to the mainstream.

    • Alito's draft directly referenced Obergefell v Hodges (same-sex marriage) and indirectly referenced Griswold v Connecticut (privacy) as being in the same "It is not in the Constitution" explanation.

      The Christofascists have been at war against the Constitution for many decades.  Their war has been well organized and well funded.  Getting control of the Supreme Court opened the door to their goals of imposing their religious dogma on all Americans.  Roe v Wade is only their starting target.  

      There has always been a large overlap between the Evangelical Christian/Dominionist Catholic and white nationalist bases of the republican party.  Since Obama those have expanded into a very vocal and violent white christian nationalist grouping that does not hesitate to attempt to use intimidation to keep things moving toward a continued white dominated and more christianized nation.

      The Supreme Court has five Dominionist Catholics and an Episcopalian who has as much religious fervor.  Alito signaled in the draft that they are looking for cases they can use to overturn Griswold v Connecticut and Obergefell v Hodges.

  5. The dog has caught the car.

    What's next? Will red states post border guards? Fund vigilantes? Pass a federal Fugitive Woman Act? Execute women who miscarry?

    Consider RU-486. How about a new drug war? Look how well the last one worked.


  6. Bernie,

    My sincerest thanks!

    I wish I was "all that."

    But I try.

    I have tried.

    And I'll continue to try.

    Again, thanks.

  7. SCOTUS has been irrelevant for some time, at least 67% of it, and now we all can see how bad it has become.

    The 67% live in a bubble, owing service and subservience only to their supreme leader and to the emoluments of their office. 

    Constitution? archaic

    Precedents? for trend sucking dilletantes

    Legal, reasonable applications? bah

    Justification? just because

    I plan on using the same reasoning to get out of jury duty by saying if three now Supreme Court justices can lie under oath, with no repercussions, then there is no point to listen to any of the legalese that gets piled up hip high in the court.

    I had given up writing to my Senators (Rick Scott and Marco Rubio) on any subject since I get the same boiler plate bullshit and polite references to perform an impossible autoerotic act on myself. I'll force myself again. To file my protests, not to complete any nasty stuff on me.

    I won't write my congressman because I.just.can't.

  8. I don’t get one thing; states that make abortion illegal will have to enforce these laws, and that means that they will have to prosecute people who break them. 

    SCOTUS can say no right to abortion, but the right to trial by jury is intact. At least half of most jury pools will support abortion rights. One fourth of women have had an abortion. A criminal conviction requires a unanimous verdict. 

    See the problem? We are told that juries are the conscience of the community from which they are drawn. If most juries have a juror who has had an abortion or have a daughter/roommate/close friend who has, a lot of trials are going to have hung juries or acquittals. If more than half of the jury thinks that the defendant has the right to commit the “crime,” what are prosecutors going to do? How long will it take for the average DA to say “screw it, this ain’t working”?


    Someone in the legislature didn’t think this thing through. How will jury selection work? How many pro choice jurors can the government dismiss without giving the defendant grounds for appeal?


    Any legal eagles out there who can shed light on this?

  9. The opinion was full of open contempt, broad assertions not backed by facts, a poorly written screed fullof rationalizations (excuses) for doing what their agenda demands. It reminded me of the voting rights decision that declared racism over so who needs voting rights. Coney Barrett seems to think dropping the newborn at the fire station solves the 'problem'.  That dismisiveness is telling. Alito's dismissiveness about the court's lack of concern and responsibility for the consequences is also telling. The whole thing is a smart alec and disingenuous gaslight. It shows there are no great legal minds on the court. Reminds me of Bush v Gore which also insulted our intelligence and ended with the 'this won't be a precedent for any other issue' nonsense. Don't forget they wanted to use that to reinstate Trump. Maybe the court's troglodytes are upset over Trump's loss and want to burn down the modern world in retaliation.


  10. The "nuclear" option for the citizen is to sit on the jury and refuse to convict regardless of the law and evidence. One person on each jury would end this nonsense. Jury Nullification IS legal and a legitimate way for people to check the legal abuses of the system. But the concept has to be widespread – it has to be discussed and debated.

    You also have to understand that the judge will try to disqualify any juror who will consider Nullification. SO you have to practice your most stupid expression and your "I don't know." That's the juror the prosecutor and judge want.

  11. Looking over the national politics on the issue, it seems the states who are the most restrictive on the abortion issue are generally the ones who fail in providing services for children.  Since the state justifies its interference and jurisdiction in matters involving a child on its interest in the "welfare" of the child, they drop the ball here too.  They want all of the power and none of the responsibility.  So too in funding their state government.  They want total control of the government but promote tax avoidance and limited social services ("faith-based" or religious strings attached social services excepted).

  12. Another thought- Make a mandatory DNA sample at birth SOP. Make the parentage known and public for every birth. Make strict automatic child support easy for women to collect. 

    Once the DNA settles who the sperm donor is, go straight to child support payments with no delay accepted by the court. Make it easy for the mother to place a lien on property.

    • It is plausible.  Two problems.  Blood, money, and work does not come from the Turnip People.  It does not improve the state's neglect and abuse record or fix faith base abuse.  We have a lot of compound problems these days.  Male irresponsibility is just one.  Now in politics we have both male and female irresponsibility.  No initials mentioned.


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