Steve May 3, 2022
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Mitch McConnell could have taken a victory lap. Monday night’s revelation about Roe v. Wade—and, potentially, a whole host of other liberal legal victories, from gay marriage to legal access to contraception—was the biggest vindication of his cynical assault on legislative norms yet. By blocking Merrick Garland’s confirmation hearings in the spring of 2016, McConnell paved the way for Roe’s demise: Without him, it’s highly likely that the right never would have accomplished its biggest goal of the last 50 years. 

And yet McConnell’s statement on Tuesday about the imminent overturning of Roe made no mention of reproductive rights or, indeed, the most significant victory of the conservative legal movement in nearly a half-century. Instead, McConnell seemed … angry. The text of his statement focused exclusively on the fact that the draft decision was leaked to the press, which the Senate minority leader referred to as a “stunning breach” and an “attack on the independence of the court.” 

“This lawless action should be investigated and punished as fully as possible,” the Senate minority leader said in a statement. “The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable.” 

He was hardly alone. Donald Trump, who also could have spiked the football, told radio host Bob Hooley, “This is a terrible thing when you have a leak coming out of the Supreme Court.… I think it was demeaning and not good.” Senator Josh Hawley, who famously urged on a riot at the United States Capitol on January 6, 2021, insisted that “the left continues its assault on the Supreme Court with an unprecedented breach of confidentiality, clearly meant to intimidate.” The right-wing lawyer Harmeet Dhillon called the leak “far more destructive than any suicide bomber would be,” while pint-size podcaster Ben Shapiro tweeted that it was designed as a physical threat to the five justices overturning Roe and demanded “prosecution to the fullest extent of the law.” 

Naturally, there is plenty of celebrating happening in several corners of the right-wing media ecosystem. By and large, however, the leak of the draft decision is being treated as a much bigger deal than the triumph of Roe being overturned. To a certain extent, this is to be expected: There is a long tradition in conservative circles of finding every opportunity to claim victimhood. It’s hardly surprising to see Republicans and their allies depicting themselves as being the true casualties of the revelation that Roe is on the verge of being overturned. Their enemies in the media and on the left are not just delegitimizing the court but literally putting the lives of Supreme Court justices in danger. 

The last point is a telling inversion. The decision to overturn Roe will, quite literally, put the lives of thousands of women at risk by denying them access to safe abortions. In this sense, the safety of the justices is being used to distract from the impact the repeal of Roe will have—whataboutism at its basest. We do not know the motivation of the leaker; it is plausible that they are allied with one of the court’s Republican-appointed justices and the leak intended to ensure that one of their members won’t end up joining a majority to preserve Roe in some form. Republican lawmakers and conservative commentators who hold that the leak has put the safety of these justices in jeopardy might do well to consider whether the leak, itself, was intended as a reminder of retribution for not toeing the right-wing line. 

In similar fashion, the leak has dislodged much belly-aching about the legitimacy of the court. This, too, is telling: In the version of events being offered on the right, it is the leak itself that has severely damaged the court’s legitimacy. The court, it insists against considerable evidence and common sense, is a sober and apolitical caller of balls and strikes; the leak of this draft decision early has, for the first time, injected politics into the proceedings, by putting outside pressure on the justices to change their ruling. 

The widespread assumption is that the leak came from someone on the left, perhaps as a way of giving the five justices who are presently voting to gut Roe an early look at the backlash to come, and perhaps—somewhat more fantastically—as a kind of warning for blue states: Now is the time to codify Roe if you haven’t already. Far less likely is the notion that the leak came from Chief Justice John Roberts, who is listed as a dissenter in the draft, as a means of pressuring the five justices to amend the draft ruling and settle for something less draconian and far-reaching—at present, the ruling imperils gay marriage and several other rights the court has affirmed in recent decades. It’s nevertheless quite plausible that the leak came from the camps of one of the more right-wing justices as an attempt to rein in would-be turncoats and block such a compromise. Regardless, the short answer is we really don’t know who leaked it and we may never know—but anyone who is too firm in their assumptions about why it was leaked is being so for highly political reasons. 

The reason why so many on the right are blaming liberals for the leak is another inversion: It’s a cynical attempt to pin the blame for the damage to the court’s legitimacy that will follow Roe on the left. But the court’s legitimacy has long been tattered, and the leaked draft decision is a reflection of that decadence. The five justices who are signing on to destroy what had been settled law for 50 years are nakedly political operatives with deep ties to legal organizations that have spent decades working for this result. (Roberts is, for what it’s worth, also of their ilk but not entirely in thrall to the conservative legal movement.) 

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The court’s legitimacy problems can, frankly be traced back to Bush v. Gore, if not earlier, when five Republican-appointed justices decided a presidential election based on their own partisan affiliations; this paved the way for President George W. Bush to appoint Samuel Alito. Three of the five justices who signed onto the leaked decision were appointed by Donald Trump, who lost the popular vote in 2016; one, Neil Gorsuch, only became a justice because of McConnell’s aforementioned effort to keep President Barack Obama from appointing Antonin Scalia’s successor. 

None dare call this judicial independence. These are justices who nakedly scorn precedent and the popular will, as well as the very concept of majoritarian democracy. Overturning Roe has been widely unpopular for years, but that doesn’t matter at all. Alito and four of his colleagues are prepared not only to gut it but to open the door to a nationwide ban on abortion—if not more—when the GOP retakes Congress and the presidency. These are not principled actions, they are deeply ideological and anti-democratic ideas shaping the court’s actions. They will also be immensely destructive to the concept of the body politic, to the legitimacy of the court, and to the lives of countless women. It’s this, not a leak of a decision that would have come out in a month anyway, that has put the final nail in the coffin of the high court’s reputation.  

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