Angry That Justice Alito’s Draft Opinion Was Leaked? Don’t Be. - Vivia Chen
… “Gravest, most unforgivable sin.” “Sacred, sacrosanct.” And “a terrible blow to the court’s morale and process and legitimacy.” My goodness.
Permit me to give you the peasant’s view of the high court: I find it very hard to get worked up that the leak is the biggest scandal in the high court. Yes, I know it’s unprecedented and shocking to insiders who’ve graced the halls. But from where I sit, the Supreme Court is certainly not sacred or sacrosanct, and, sadly, not always legitimate.
All that might be true but did the leak really pose a threat to the integrity of the high court? Or is that belief based on some quaint, romantic notion?
I posed that question to Feldman, and he emailed me: “The court still has (had) plenty of legitimacy after gay marriage, holding back Trump and overturning lots of his worst decisions. Its polling numbers have been much better than other gov. institutions.”
Maybe better than some government institutions but that’s not saying much. According to a 2022 poll by Marquette University Law School, 53% say the court is “mainly motivated by politics” in its decisions, compared to 47% who believe that law is the main motivator.
That same poll also finds that support for the Supreme Court continues to fall: in 2020, 66% approved of the court v. 33% who didn’t.
Today, the approval rate has dropped to 51%, while the disapproval rate has risen to 46%.
The reality is that the court is polarized and partisan—and that’s how most Americans see it too.
And what better example of extreme partisanship than Alito’s draft opinion?
Alito writes that Roe was “egregiously wrong from the start,” that “its reasoning was exceptionally weak, and the decision has had damaging consequences”—as if overturning Roe would result in only good consequences.
He also had the audacity to say that Roe and related decisions “have enflamed debate and deepened division"—as if his decision would heal the nation.
At one point, Alito also plays a very cheap race card, writing in a footnote that early supporters of abortion rights “have been motivated by a desire to suppress the size of the African American population,” adding that “it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.”
So Alito is now a protector of Black Americans? Who knew?
Of course, most notable of all, the opinion isn’t just chipping away at Roe ; it calls for its total destruction.
So can we skip the pretense that the Supreme Court is above the political fray? Or that the justices are high priests of the Constitution?
Believe me, a leak of a pending opinion from its inner sanctums is the least of its problems.
To contact the columnist: Vivia Chen in New York at [firstname.lastname@example.org]