Abortion is more important than the leak.

Besides the leak, has anything else politicized the court recently?

Abortion is more important than the leak.
Source: New York Public Library digital collections

Politico reported on Monday evening that a draft Supreme Court opinion showed that the Court had voted to overturn Roe v. Wade, the 1973 Court decision that established constitutional protections of abortion rights. The draft has a blast radius wide enough to encompass Planned Parenthood v. Casey, a 1992 Court decision that largely reaffirmed Roe.

The document obtained by Politico is not the court’s final opinion, but there’s little reason to believe that the final judgment of the conservative-majority Court will change even if the eventual text of the decision differs greatly from this draft. The willingness to overturn Roe has been a clear prerequisite for conservative nominees to the Court for decades. Well-funded and deeply networked generations of anti-abortion rights activists enjoyed playing coy about this; Democrats have eagerly swallowed those sugar pills rather than assert power, when they occasionally have it, to protect against exactly what the Court appears to poised to do.

The Court will probably produce its final opinion sometime this summer. If it’s anything like the draft version, the damage could take decades to undo, especially since Democrats refuse to try court packing or nuking the filibuster. Instead, they prefer to fetishize bipartisan decorum while the opposition snarls at them with rabies foam rolling off their fangs. Voters already gave the supposed good guys their warhammers; if Democrats decide the only thing to do with them is fundraise and whine about voting, the future feels bleak.

I wish I had nicer things to say right now. I don’t. This scenario was entirely predictable and to some degree there were preventative measures available that our elected officials just didn’t bother to use. Some pundits have argued the leak will mobilize Democratic voters this fall, but the news will drive Republicans to the polls, too.

“Give us power and we’ll get you results,” the national GOP has told its base. “Give us the state houses so we can write laws around this decision and cement it further,” the local politicians will say. There’s blood in the water now, and if you think the sharks will be satisfied with just a bite or two, I would like to tell you about some new cryptocurrency ideas I have.

The Evangelical Right has been fighting for this exact outcome my entire life. Soon, Senate Republicans will be able to give that massively influential voting bloc its greatest victory. The amount of funding and organizing devoted to this line item has been outrageous; the victors won’t go into retirement after this decision. Take a look around the GOP today—or even the decision itself—to find the next items: rolling back LGBTQ rights, legalizing racial and sexual discrimination in the name of religion, gutting public education, and so on.

The leak of a Court’s draft decision is a rare occurrence, as Politico noted in its reporting, though it’s not unheard of. In fact, the original Roe v. Wade decision was also leaked to the press. It’s not unreasonable to suggest that leaks can undermine the integrity of the Court and create confusion when final verdicts are handed down, but perhaps it’s a mistake not to ask whether anything else has diminished that integrity in recent memory.

The truth is that conservatives are hungry to make the leak the story. And if you listen to them, the leak isn’t just a scandal, it’s murder. Journalist Nick Martin of The Informant tweeted a handful of examples of this rhetoric, coincidentally from the same pseudolibertarian demagogues who pretend to be free speech absolutists.

In the screenshots compiled by Martin, you can see Harmeet Dhillon, a GOP lawyer, declaring that the leak is “far more destructive than any suicide bomber would be.” Right-wing pundit Ben Shaprio asserts that the leak was meant to jeopardize the lives of justices who want to undo Roe. Former Fox News host Megyn Kelly imagines a “woke” law clerk to be mad at. Arizona Sen. Wendy Rogers advocates the “traitor treatment” for the leaker, which I can only assume is a reference to the death penalty. Fox News pundits have used the word “insurrection” to describe the leak.

Let me put this as diplomatically as I can: Fuck these people.

At this point it ought to be very clear that conservative concern for decorum is craft-brewed and available in a supply limited to their own very narrow social agenda. Nationwide, outlawing abortion isn’t popular and hasn’t been for a long time. (That is not going to stop them, of course.) It is a radical decision likely to have ripple effects well beyond the issue of abortion.

So to these folks, the real crime is that they couldn’t spring the end of Roe on the nation on some random summer afternoon, when they might be better able to control the national conversation around it more fully. Instead, now the horror of minority rule is clear to everyone observing the corrupted process, whether or not conservatives decide to acknowledge it themselves.

Conservatives have also assumed that the draft was not, in fact, leaked by a SCOTUS staffer who supports the ruling and saw advantages to his own team—for GOP-led state governments who might want a head start drafting supporting legislation ahead of midterms, for example. We don’t know who leaked it. That detail is less important.

The leak is substantial, but at the end of the day, it is not the story. We have to begin trying to conceive of the monumental destruction a decision following the verdict of this draft would wreak. The building is burning; perhaps it behooves us to leave it rather than stand slack-jawed amid the flames marveling at how unusual the fire alarm sounds.

A solemn normie’s mantra

Edited by Sam Thielman