Freedom of the press is an enumerated right.
As mentioned, there is a textually explicit freedom of the press in the 1st Amendment, probably the founders were already accounting for that kind of scenario (or for someone saying, “oh you’re all free to speak, just not to publish a quote of what was spoken”).
Seems much, much more likely to me that someone on the conservative side leaked it.
As you note, the hard-line conservatives don’t give a shit what people think of them. It would accomplish precisely jack and squat for a liberal to leak the draft and appeal for public pressure to sway the court.
Rather, consider that this is a draft of an unpublished, unissued decision. If the vote currently sits at 5-4, there’s still a possible flip, and a reversal of the ruling. In order to forestall that, a conservative could leak the draft now, thereby making it difficult or impossible for a wavering justice to change their mind and suffer the wrath and scorn of their political patrons.
That feels to me like the much more probable scenario. But I guess we’ll see as things shake out.
The First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Freedom of of the press is in the First Amendment. The New York Times is literally the press.
Not just women (inshallah).
Also, let’s not fool ourselves, and please “pro-lifers” don’t even try to tell me otherwise: the goal IS to eventually have a nationwide prohibition and whittle the exceptions down to virtually none.
Yeah, that is the even bigger elephant in the room. We’ve had debates here with people who insist that there is no right of privacy, period. Tie that to the “originalist” vision that the unenumerated 9th Amendment rights are only privileged if it means those that were traditionally held in society at that time as being bloody obvious, and you have what is a real desire in many conservative circles: recovering the power to legally enforce private morality according to “traditional values”. We have had people argue in this board that seeing how at no point there was in American law the libertarian notion of “as long as it hurts nobody else” as a basis for permissiveness, the plenary power of the states does go that far as to make things like abortion, birth control, LGBT rights, etc., heck, “unnatural sex” even inside of marriage (as was the case until recently) totally subject to the whim of the legislative majority of the day.
Definitely.
I’m pretty sure the “Constitutional reform” point was directed to the general minority-rule problem created by population-independent Senate representation and the Electoral College structure which gives some states one vote each for people, cows, and tumbleweeds. (Note the comparison to the pre-1832 “rotten borough” problem in the United Kingdom.)
The amendment provisions of the Consitution have a hard bar against changing equal state representation in the Senate, though in practice this is irrelevant – if reformers can whip up enough support to amend the Constitution, they could accomplish the same effect with an amendment that (for example) limited the power and authority of the Senate to deciding what color fireworks to use in the DC Fourth of July celebration.
Yes, as long as you don’t count England & Wales, Northern Ireland, Republic of Ireland, India, Australia, Canada, New Zealand, several African countries, several Caribbean countries; but aside for them, yes, the US is nearly alone in using common law.
Note that Alito’s draft is dated February – the other justices have had this for a couple months. And the decision itself is still months away. So why leak this now?
A couple of theories. It could have been a liberal justice or clerk wanting to sound the alarm that this is coming down the pike and rally enough public outrage to give one of the conservative justices cold feet. I frankly think this is unlikely – none of the five conservatives (sans Roberts, who apparently is in the minority on this one) seems like the types that would let public outrage change their position.
I think it’s more likely that a conservative justice leaked it to lock in those five votes. Maybe Alito felt that Kavanaugh might be on the fence about the breadth of the decision. Leaking this draft puts all five on record as supporting fully overturning Roe v. Wade, so if they end up signing onto a more restricted decision it will be clear to the conservative movement that they backed off.
There may also be a political calculation that it’s better to get the news out now, months before the midterm elections, rather than have it hit like a lightning bolt closer to when voters are heading to the polls.
Compare secretly gay and bisexual conservatives who oppose gay rights.
I do see this as a huge problem but there is a major difference between this ruling and for example striking down gay marriage. Abortion is a time-limited event while same sex marriages are ongoing. You would have to actively strip away rights that people are currently using. More important, however, is the fact that things like federal taxation should be equal among the states. If you have a marriage that is valid in one state but invalid in another, it causes problems with taxation, social security benefits etc since people move among states. If the Federal government recognizes a marriage as valid in one state then it needs to be recognized regardless of where the couple lives. It’s difficult for the court to say, for example, that a marriage in Massachusetts becomes invalid if the couple moves to Texas from a state standpoint but remains valid from a federal standpoint. That is not saying they wouldn’t do it, just that it is not as easy.
this is mcconnell’s checkmate. trump got 3 judges due to mcconnell. should the senate change hands next year, mcconnell back in power… things are going to get very dark.
The Supreme Court (along with the rest of the federal bench) is indeed the only thing about which McConnell cares. But I don’t think he gives a flying fuck in a rolling doughnut hole about abortion. Interpreting the law to benefit his corporate masters- I think that’s what gets him up in the morning and that’s what keeps the money flowing into him.
No, because we’ve got Constitutional amendments against it at this point. That’s all that would be preventing it though.
And that’s the catch- based on how they’re ignoring stare decisis at this point, any decision without a clear Constitutional enumeration is open to reevaluation.
Used to be that once a matter was decided, the court went forward and treated it as decided. (essentially what stare decisis means). But apparently not any more.
Yeah… That’s what I was wondering.
I agree. If a liberal clerk wanted to leak it, why wouldn’t they have done so in February? What did they gain by waiting until now?
In fact, here is another scenario: Suppose that there were one or two of those 5 who was conflicted between totally overturning Roe or just issuing a narrower ruling affirming the Mississippi law while not overturning Roe. So, given the momentous nature of this decision, is it not possible that they had Alito write up the majority decision they would issue if they were to overturn Roe and someone else, most likely Roberts, write the other one and then the wavering justice(s) would decide which they wanted to go with? (The losing side would presumably then become part of the dissenting-in-part/affirming-in-part opinion.)
And maybe since February it has been playing out that the wavering justice seemed to be leaning toward the Roberts one and so the clerk who leaked it wanted to try to get Alito’s out there as the majority opinion to either pressure or embarrass that wavering justice.
[Note that I have written this in terms of clerks just because it seems more likely to me that it is not one of the justices, but someone else with access to the draft opinions who has done this, although it is of course possible it was a justice.]
Yeah…That occurred to me too.
I wonder how many republican women say they’re pro-life feeling safe doing so bc they feel there’s no actual chance Roe would get overturned; but then faced with an actual threat will secretly vote Dem at the polls?
It would be treated the same as Prohibition, where “dry” politicians were allowed to imbibe without fear of reprisal, because of the way they voted. Thomas himself would have nothing to fear.
I am doubtful that it is really very many. There may be some who, when themselves faced with the actual decision to abort or not abort would choose to get an abortion. However, they would consider themselves pro-life in the absence of such a decision to make themselves. And, these people, if they have means, will likely still be able to access abortion (by traveling out-of-state or by pharmaceutical means). So, what they are really doing is condemning those without such means to carry their fetuses to term.
I am interesting is seeing how big of a deal this will be. For decades, pro-choice people have said the women across the country would not stand for this sort of ruling. So let’s see what happens.