The leak of a whole draft opinion, including its specific qualities, has led to a lot of commentary. Let us also remember there there are multiple leaks. There is the draft opinion, which gets a lot of the attention. But, there are also other leaks, continual really, of the overall process. This end seems regularly to come from the conservative side. In fact, I do not know of ONE article that referenced (other than maybe in very vague "they all" terms) the opinions of the liberal justices.
Prof. Sherry Colb, e.g., have written about it from a religious and feminist angle in strong terms. She's clearly angry (her anger tends to be earned) and blunt. At times, I think she might be a bit too blunt, but when someone on the whole is on point, that's okay. I like to carp, sometimes maybe too quickly. Still, I do believe that. And, when someone does not respect someone because they latch on to a little part, that is one thing that bothers me.
The leak of the draft opinion -- which a few remind us is a draft opinion and probably will at least be somewhat toned down (so I'm not really inclined to read the whole thing or something though reading drafts can be useful, especially if you have the final draft) -- to me has had clear effects to drive responses from the pro-choice side.
The likelihood of a bad result was pretty clear, but the draft basically slams it over our heads. Many (with the exception of Tom Goldstein at SCOTUSBlog) non-conservative in nature assume the leak was from a conservative clerk or something. One outlier liberal professor said she thought it was a computer hack. But, the response to me suggests there is some argument to be made that the draft leak (again only part of the leaks) could have come from the liberal side.
Abortion rights are Human Rights
Abortion Rights are Health Rights
Abortion Rights are Economic Rights
A basic response is to reaffirm the importance of reproductive justice, in particular abortion rights, to women equality. This blog analysis, which ends with those three points, focuses on that significantly. Linda Greenhouse in a recent op-ed (she no longer has a regular column at NYT, but still pops up) shows that the Thirteenth Amendment argument is also getting some traction. And, we get some tools and tool curious.
But the argument that Dobbs is an illegitimate action by an illegitimate Court must hinge on more than "I have a different view of the law."
I bluntly call that "tool curious" in part since I'm tired of various things that guy wrote in the "I'm pro-choice, but will handwave the problems of the law ... I get you are emotionally attached, but this is how things work" sort of way. He once, e.g., compared the Texas abortion litigation and the delays that led so many women to be denied abortion rights to NYT v. Sullivan. There are significant differences.*
And, "I have a different view of the law" is not why people think what is going on illegitimate. I'll try to be fair and calm here. A basic concern for him is a statement like this from the last law professor linked:
If and when Dobbs overturns Roe, this will be the first time in American history that the Supreme Court overturns precedent in order to take away – rather than to expand – fundamental human rights.
What's the reply here? The Supreme Court at least "limited" the freedom of contract (Lochner). Also, they "limited" rights of criminal defendants in various respects. And, the Supreme Court majority might argue that it is "vindicating a right to potential life." To be clear, the guy (huh) is tentatively accepting of the framing, but less sure it works.
I would push back on too much fine tuning here and the fact two law professors are involved show this is just not a matter of me not "talking law" enough or something. The scope of overruling abortion rights is the concern here. Planned Parenthood v. Casey already limited abortion rights.
And, the first person didn't actually say it was "illegitimate." She said it had "horrendous implications for our democracy that cannot be understated" and "should be alarming enough and give us an understanding of how much at risk all our constitutional rights are right now."
So, why is he referencing her regarding it being allegedly "illegitimate" for that reason? I doubt it is rocket science to argue that it's possible for the Supreme Court to wrongly hold something is a right. The concern is they plan to wrongly remove a right. And, whenever they do that, they will argue they are somehow correctly defending "rights" in another way.
And, we have some more, this is so hard:
It cannot be the result simpliciter--that my constitutional understanding differs from that of the apparent five-Justice majority does not make their views wrong in any objective sense, much less illegitimate. It cannot be that it overrules precedent, because the Court has overruled precedent. This is also why it cannot be that recent appointees pledged fealty to stare decisis--case are always subject to reconsideration and stare decisis has standards for overruling cases. It cannot be that the stare decisis analysis is wrong, for the same reason that disagreement with substantive constitutional analysis is not sufficient.
Yes, since I do not think anyone with any half-way credible argument regarding why the opinion is arguably "illegitimate" rests on strong differences in constitutional ideology alone. Some do argue specific analysis here are so wrong that the opinion is not credible. That goes to the merits. It is simply a strawman, however, to say the argument is merely "I disagree, therefore illegitimate." It's made too often. I'm tired of it.
Likewise, granting there is limited confusion here, precedents are overturned. The longstanding nature of the precedent and more again goes to people being very upset at it being overturned. Still, even the common layperson is vaguely aware about how segregation was once accepted. They lived through same sex marriage being constitutionally protected.
And, people can change their mind about things (Alexander Hamilton did after he wrote the Federalist Papers). That alone is not the point in a bare way. Let me note I'm using this guy as a representation as much as a way to answer arguments. It is an example of people arguing in a bad way. I get upset at it, but it also suggests there is just a cluelessness of some.
Anyway, the argument I have seen is that the conservatives basically lied about their respect for stare decisis. People like Kavanaugh and Barrett were chosen specifically because of their positions on things like abortion. For them to parrot the usual bland bullshit about how Roe/Casey is the law of the land when it is apparent they would overturn it the first time it was sensible to their cause is just that -- bullshit at least, perjury at most.
Now, maybe that is wrong. Maybe, they just parroted the usual lines used by both sides. This, however, is the argument I have seen. It is not simply that stare decisis means law can never change or they cannot change their minds. That's stupid. If you want to briefly go down the list of bad arguments, fine, but let us be clear that you are doing so badly.
So, the basic arguments so far are (1) abortion rights are fundamental and it is on the merits illegitimate [especially given the weakness or even blatant offensiveness of their arguments] to remove such basic rights (2) they were put there, in sham sort of way, to do this and basically lied about it.
If you want to refute this sort of thing -- like "reasonable" Orin Kerr does regarding how "both sides do it" regarding nominations from Garland to Barrett -- go at it. Still, if you want (the straining seems tough on you) figure things out, perhaps do a better job of it.
And, yes, a basic part of the illegitimacy is that people think HOW they got there is illegitimate. To add insult, a case that is about a limited thing (a 15 week ban) is used in a broad way to go after Roe itself. Finally, many don't even focus on "illegitimate" as much as it being a grievously wrong denial of basic human rights.
A horribly argument in support of state sponsored enslavement is bad enough for many of us. At another blog, which no longer has comments either, a prime conservative sort basically questioned the good faith of the other side. Their arguments seemed so wrong to him, it must be that. I tried to argue that it is a matter of honest, if often wrong-minded, disagreement much more often. Even he, however, realized mere disagreement alone was not illegitimate.
Anyway, it would not shock me if the abortion cases brought us some sort of surprise. There is so much commentary beforehand, people very sure of themselves in the process. And, there is a lot of confusion. To quote a favorite verse of mine of St. Paul, we continue to look at things through a glass, darkly.
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* The summary of the article compares the two situations, but SB8 was a novel approach with various dubious legal aspects, including making it more difficult to sue and retain relief. It is not simply like historical libel litigation, which certain government officials could for their own ideological reasons basically abuse.
The delays of litigation are present in the libel case as with many other lawsuits. Again, there is a significant difference when the result is to inhibit people from having abortions, and perhaps pressure them to have (permanent) children. The NYT and other libel plaintiffs generally have temporary burdens (of limited reach) that later can be addressed.
On the blog, he blandly noted the delays in the SB8 litigation as if there was nothing special about them. The usual practice in these cases was to hold the abortion limits in abeyance pending litigation. Again, because the alternative is significantly different from the libel context.
Finally, the SB8 law is patently unconstitutional, if perhaps predicatively acceptable. The libel law was to my knowledge a fairly typical historical based one that the Supreme Court deemed in need of updating. So, without fully going into the weeds of the article, I find the comparison to have various problems.
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