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There’s an upside to the Alito draft leak

by | May 6, 2022

Why should close reading, historical insight and an abundance of footnotes delegitimate the Court?

By Richard Stith   

The leak of Justice Alito’s draft of the majority decision in Dobbs v. Jackson Women’s Health Organization, unfortunate as it may be, should not delegitimate the US Supreme Court.

If a snarky, plotting, election-related draft had been revealed, that would have truly delegitimated the court. But in the draft one only finds very solid scholarship, even if one disagrees with it. It’s exactly the sort of thing that one would have wished for in a profoundly serious, deeply researched opinion.

Why should close reading, historical insight and an abundance of footnotes delegitimate the Court?

As a pro-life writer, I actually was a bit disappointed in the draft’s content. It contains no mention of the horror of abortion, except for a few initial citations from Mississippi. Nor does it mention any of the procedural flaws of Roe, especially the lack of a factual record (re life and re women) tested at a trial proceeding. And, an even bigger gap, it doesn’t mention any of the arguments that abortion hurts women. (Justice Kennedy did better a few years ago.)

So I think Justice Alito bent over backwards to go easy on the supporters of abortion. His text only hammers hard at the surface incorrectness of the reasoning of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.

In this regard, the leak has a silver lining. People will read through the draft opinion with greater care than they would ordinarily lavish on an actual Supreme Court opinion, where only the final result matters to most of us. Of course, even here many will be only concerned with where Alito comes out, but even then they will scrutinise it in order to figure out the best counterblow. And people find it plain exciting to read stuff that’s supposed to be secret.

Here is some evidence for my silver lining. The Washington Post yesterday published an annotated albeit somewhat simplified version of the text. I thought that both the abridgment and the textual comments were remarkably fair-minded, really devoted only to explicating Alito’s reasoning, not to unfairly debunking it. 

Others are no doubt doing what the Washington Post did. This will soften support for Roe. If more and more people learn what an unfounded opinion it was, they will have less reverence for it. (I will concede that showing the extreme sloppiness of Roe does delegitimate the Supreme Court of 1973 quite a bit, but at the same time it elevates the legitimacy of the current Court. So I’m not sure how that eventually washes out in terms of the historical trajectory of legitimacy.)

I’m not denying that the main political event that we are seeing right now is the marshalling of the mob. But that would have occurred in any event, as soon as the Court announced its decision in June .

But maybe advance titillation is slightly better than a done-and-dusted announcement in June.

Editor’s note. This appeared at Mercatornet and is reposted with permission.

Categories: Supreme Court