Late one evening over a week ago, I got word that the Supreme Court of the Unites States was about to overturn Roe v. Wade.  The details about this bit of news became known to me the following morning as I read and listened to news coverage.  Someone leaked a draft of the ruling on the Mississippi abortion case (Dobbs v. Jackson Women’s Health Organization).  We do not know who that someone is, but many are speculating that the individual is a clerk to one of the justices.

The reaction to the leaked draft was quick and fierce.  Many were outraged at the breach of trust by the individual who provided the leak; others were even more outraged by the content of the draft.  Conservatives dominated the former group, where liberals dominated the latter.

The hysteria regarding the written draft is not surprising.  Abortion is an important political issue for both liberals and conservatives.  It is also a personal issue for voters.  Emotions run high when the abortion issue is front and center.

However, the leak, and the reactions to it, were completely avoidable.

Barack Obama was president for eight years.  Justice Ruth Bader Ginsburg had an opportunity to retire during Obama’s time in office.  In 2013, the first year of Obama’s second term, Ginsburg turned 80 years old.  She could have retired during the first few years of his second term, especially in 2013 and 2014, where the Democratic Party controlled the U.S. Senate.  Obama would have nominated a successor aligned Ginsburg’s political philosophy who the Senate would have easily confirmed.  It should be noted that Ginsburg had been battling cancer for about two decades.  In 1999, she diagnosed with colon cancer.  In 2009, she was diagnosed with pancreatic cancer.  In 2018, after Obama left office, her doctors discovered cancerous nodules on her lungs.  In 2020, Ginsburg had treatments for cancerous lesions on her liver.  She also had heart stent surgery in 2014.  Justice Ginsburg, given her age and her serious health issues, had good reasons to retire before 2016.

Because Justice Ginsburg chose to remain on the bench during the Obama years, she presented an opportunity for Obama’s successor, Donald Trump, a Republican, to nominate Judge Amy Coney Barrett of the U.S. Appeals Court for the Seventh Circuit to succeed her when she died in September 2020.

Assuming Justice Barrett differs significantly from Justice Ginsburg in judicial philosophy, staying on the Court instead of retiring during the Obama presidency places her legacy in jeopardy on not just abortion, but issues of race, healthcare, gender, and sexual orientation.  Liberals, however much they admire RBG, no doubt feel some sense of betrayal because of her refusal to step down years earlier.

The bottom line is that had Justice Ginsburg retired during Obama’s time in office, the leaked opinion would likely not have had five votes to make it the majority opinion.  Missed opportunity #4.

Apart from Ginsburg’s refusal to retire, the leak was avoidable in others way.

In 1990, George H.W. Bush had the opportunity to nominate to the Supreme Court Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, when Justice William Brennan retired.  Jones had been a judge on that court for five years and was 41 years old.  Bush ultimately chose Judge David Souter of the U.S. Court of Appeals for the First Circuit for the vacancy.  Bush nominated Souter because his friends U.S. Senator Warren Rudman and White House Chief of Staff John Sununu persuaded him to do so.  Senator Rudman represented New Hampshire in the Senate.  John Sununu was Governor of New Hampshire prior to joining the Bush Administration.  Souter was raised and spent much of his adult like in New Hampshire (he served as New Hampshire Attorney General and was an Associate Justice of the New Hampshire Supreme Court).  Bush apparently did recognize that there may have been a conflict of interest when Rudman and Sununu were lobbying on Souter’s behalf.  The Senate voted to confirm Souter.  Two year later Souter voted to uphold the central holding in Roe v. Wade (Roe) in Planned Parenthood v. Casey (Casey).  It is highly likely that Edith Jones, a known constitutionalist, would have voted to overturn Roe.  Missed opportunity #3.

In 1987, Ronald Reagan nominated Judge Anthony Kennedy of the U.S. Appeals Court for the Ninth Circuit to the U.S. Supreme Court to fill the vacancy created by the retiring Justice Lewis Powell.  Kennedy’s nomination came about because (1) the Senate rejected Judge Robert Bork’s nomination and (2) the withdrawal of the nomination of Judge Douglas Ginsburg.  Given the failed first two nominations, it is understandable that Reagan wanted a safer choice who he felt the Senate would find acceptable.  February 1988, the Senate voted to 97-0 to confirm Kennedy.  The safe choice does not necessarily mean a good choice for the Court or the country.  About four years later, voted to uphold the central holding in Roe in Casey.  Years later, Bork, in an interview, said that the Democratic-controlled Senate blocked his nomination because he would have been the fifth vote to overturn Roe.  Missed opportunity #2.

In 1981, Reagan nominated Judge Sandra Day O’Connor of Arizona Court of Appeals to the U.S. Supreme Court after Justice Potter Stewart announced his retirement.  Reagan pledged during the 1980 presidential campaign that he would nominate a woman to “one of the first Supreme Court vacancies” in his administration.  This was the first vacancy during his administration.

A graduate of Stanford Law School, where she was the classmate of future chief justice of the United States William Rehnquist, O’Connor had the educational pedigree for the job.  While she had a distinguished career in state government, serving in all three branches, O’Connor did not have much of a record on deciding federal constitutional questions.  It did not matter.  She exceeded the minimum qualifications to serve on the Court, and she was a woman.  This kind affirmative action when dealing with important occupations is often a recipe for disaster.  Sure enough, eleven years later, O’Connor voted to uphold the central holding in Roe.  Had Reagan nominated Bork, who had argued numerous cases before the Supreme Court during his time as solicitor general in the 1970s, to the Supreme Court, a Republican-controlled Senate would have confirmed him in 1981.  Missed opportunity #1.

When the Supreme Court did not overturn the central holding in Roe v. Wade – that abortion is a protected right under the U.S. Constitution – when it decided Planned Parenthood v. Casey, it deepened the polarization in the country.  Like Dred Scott v. Sandford (1857) deepened the polarization on the question of slavery, Casey did so on the abortion question.  Had the Court overruled Roe completely, as upsetting as it would have been to many Americans, the public was mentally prepared for it to happen.  After all, the two dissenting justices in Roe (Rehnquist and Byron White) were still on the Court in 1992, and Republicans Reagan and Bush filled five vacancies between them during their presidencies.  It should have been easy to get to five votes to outright reject Roe.  It did not happen.  As a result, those who believed that abortion is a fundamental right were emboldened, and those in the other camp felt like they were cheated (again) by the U.S. Supreme Court.

Because of Roe and Casey, the abortion issue has infected electoral politics and has made Supreme Court confirmation process needlessly contentious, if not downright nasty.  Bork, Justice Clarence Thomas, and Justice Brett Kavanaugh have been especially harmed, in large part, due to these decisions.

Strangely enough, the case involving the leaked opinion draft is not about abortion.  The issue at hand is the role of the federal government.  Since 1973, the federal government has been involved in the abortion issue.  Since the U.S. Constitution says nothing on the issue, abortion policy should be left to the states to regulate (or not regulate).  That was the fundamental mistake made in Roe.  The Court should not have taken up the case, much less decided as it did.  Without Roe or Casey, state legislatures would make laws regarding abortion.  Some states would have restrictive laws (such as Florida and Texas) and others would have no restrictions on abortion (such as Vermont and Oregon).  The laws would reflect the attitudes of the people of those states.  If an abortion is unavailable in one state, a woman can travel to a nearby state to have the procedure.  This is a key feature of federalism.

As for who leaked the draft, I suspect that the identity of person who did it is now known to Chief Justice Roberts and was probably known to him within a day of the leak.  There is an investigation at the Court.  The universe of possible suspects is small: the nine justices, their thirty-six law clerks, and a few support staff employees.  It could be any one of them, though it is difficult to believe that any of the justices or permanent Court staff would do this.  The likely culprit is a clerk who works in the chambers of one of the justices nominated by a Democratic president (Breyer, Sotomayor, or Kagan).  Given the technological safeguards at the Court, this breach would have been detected and would have identified the leaker.

In the 1990s, computer programmers around the world were busy coding to address the Year 2000 problem, also known as Y2K.  The issue was that dates represented in computer programs had the year stored as two digits (1972 would be stored as 72), making the year 2000 indistinguishable from the year 1900.  If the problem was not fixed, it could have brought down industries and institutions such as airlines, banks, and financial markets.  After societal anxiety about what would happen on January 1, 2000, the catastrophe, because of very hard work, was averted.  Turned out to be a nonevent. If the leaked opinion becomes the final majority opinion, where Roe and Casey are completely overturned, where abortion is declared not to be a constitutionally protected right, where abortion regulation is returned to the several states, this, too, after the initial yelling and screaming, will turn out to be a nonevent.