As I predicted yesterday, a big focus of the leaked Supreme Court decision is going to be the question of who leaked the draft opinion.
Wouldn’t it be funny if the leaker turns out to be Justice Stephen Breyer? He’s already resigning at the end of the term. What are they going to do, fire him?
This decision — which, in all fairness, one must add has not yet been enshrined — could cause political shock waves and upend the perceived calculus about how the midterms are going to go.
Which leads us to the question of whether this Supreme Court is an illegitimate court?
Of course it is.
Merrick Garland should be sitting on the court, and Amy Coney Barrett should not be sitting on the court. That the reverse is true is all due to that Überhypocrite, Mitch McConnell.
But he got what he wanted.
Now he has to hope that it doesn’t come back to bite him.
So far, there are five votes to jettison Roe (Alito, Thomas, Gorsuch, Kavanaugh and Barrett) and three in opposition (Breyer, Kagan and Sotomayor). How Chief Justice Roberts votes will be interesting. He’s an institutionalist, and he may vote against overturning Roe without affecting the outcome.
We should note that we only have a draft of the lead opinion from Alito, and no one yet knows how many concurring and dissenting opinions there might be.
In any case, as one can see from the map below, the legal situation in the various states is one giant clusterfuck:
- Progressive states, like Massachusetts (my home state) and California have already enshrined abortion rights in the law.
- Regressive states, like Texas and Oklahoma, have trigger laws banning abortion, that will spring into effect as soon as the decision is formally released.
- A third category of states, like Michigan and Wisconsin, had laws banning abortion that were overruled by Roe, but which were never taken off the books. In these states the bans would spring back to life.
- A fourth category of states, like Pennsylvania and Ohio, never resolved the abortion issue, and the Roe case made the issue essentially moot.
Good luck to the wild, wild west. People of means will travel to the coasts to get their abortions, and abortion providers in California, Oregon, New York and Massachusetts, among others, can expect to be deluged with abortion requests.
If there can be a thriving underground business in opioids, then there can be a thriving underground business in abortifacients.
But it might not be pretty.
Welcome to back to 1973, a time where a superpower was at war (the United States in Vietnam), there was a disgraced President (Nixon), and abortion was not yet the law of the land.