Tuesday, November 29, 2022
Miles from the Mainstream
D. R. ZUKERMAN, proprietor

An Unprecedented Assault
on the Judicial Process

May 5, 2022 --

The following link appeared at Breitbart, May 3, on leftist outrage that the Supreme Court of the United States seems about to reverse that decision in Roe v. Wade recognizing a constitutional right to abortion.  LPR visitors are warned that the Breitbart story contains the  use of vulgar expletives that has become a regular part of the leftist political vocabulary.  


That the leaked draft opinion reversing Roe was attributed to Justice Samuel Alito has suggested to LPR that Chief Justice John Roberts, presently, is in the minority of what seems to be a 5-4 ruling.  Had the chief justice been part of a 6-3 majority, it semes more likely than not that he would have been the writer of the Roe reversal, not Justice Alito who likely was  selected to write the Roe reversal by Justice Clarence Thomas, the senior member of the majority. - with Chief Justice Roberts in the minority.

As it happens, at New York Law School, in the early 1980's, LPR wrote a paper on the judicial philosophy of the author of the Roe opinion, Justice Harry Blackmun, appointed to the high Court by President Nixon.  LPR recalls noting that while Justice Blackmun, as a federal appellate judge was considered a "strict constructionist,"  this reflected his role on a lower court, duty-bound to follow the rulings of the Supreme Court.  As a member of the Supreme Court, apparently he regarded his judicial horizons to be somewhat broader than his horizons as an appellate jurist.

Consider the short third paragraph of the Roe opinion, which indicates that "population growth, pollution, poverty and racial overtones" were factors in finding a right to abortion in the Constitution.  One may well wonder what the number of people in the country or "pollution, poverty and racial overtones" have to do with. constitutional rights.  Was Justice Blackmun, among other things, determined to apply the Constitution to limit the number of babies born to single-mothers on welfare?

On May 3, Chief Justice Roberts directed the Marshal of the Court to investigate the leak of the Alito draft opinion.  Speculation had quickly formed that the leaker hoped to get a justice in the apparent Alito majority to change his or her position on the case, sustaining the Roe precedent.   LPR does not doubt that the left would have reacted even more forcefully had the Roe reversal ruling been handed down.   There is the possibility that the premature notice of the decision to reverse Roe will allow leftist passions to cool , somewhat, when the ruling is officially announced -- notwithstanding assertions by the left that rhe Democrat base is now motivated to vote in huge numbers that will prevent Republican gains in November.  

In LPR's view, the disastrous Biden administration, arguably leading the country into the tragedy of war with Russia, and issuing arbitrary actions harming the economy -- including runaway inflation and counterproductive policies on fossil fuel, cannot avoid rebuke by the citizenry in November -- unless, of course, the country again becomes afflicted by voter fraud.

The fact of the Supreme Court leak is an unconscionable assault on the sanctity of the judicial process.  The perpetrator has placed domestic politics above constitutional principle.   That is to say, the perpetrator has attacked the guiding idea of liberty tnat no person is above the law.    But hasn't this been what the Roe v. Wade controversy has been about for nearly half a century -- that the decision was an assault on the Constitution?