Judging Freedom - Supreme Court Opinion Draft Leaked

Episode Date: May 3, 2022

Supreme Court draft opinion to overturn Roe v Wade leaked #supremecourt #abortionSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Good morning, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, May 3rd, 2022. It's about 940 in the morning. My apologies for those of you who have been waiting patiently. We tried to come on about 10 minutes ago. A couple of little technical difficulties, which we since have ironed out. So we're here, we're live. I had a busy morning because when I woke up, I didn't realize I was going to have to read a 98-page draft of a Supreme Court opinion, but that, of course, is the big news out this morning. Someone who had access to a draft opinion written by Justice Samuel Alito. Just as an aside, Justice Alito and I are boyhood friends. We're classmates at Princeton.

We've known each other since 1968. Someone delivered to Politico what appears to be a draft opinion written by Justice Alito in the Dobbs, Mississippi case. That's the case in which the state of Mississippi has asked the Supreme Court to overturn Roe versus Wade, the draft opinion, which appears to be agreed to by five justices of the Supreme Court, the author, obviously, Justice Alito, Justice Clarence Thomas, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett, would, if it stands, meaning if it's the final opinion of the court, repeal, reverse Roe versus Wade and the case that reinforced it 20 years later, known as Planned Parenthood versus Casey, and then it would leave abortion up to the states. and well-researched, basically says that because the Supreme Court, because the Constitution is silent on abortion, and because before Roe versus Wade, abortion was regulated, like all medical

procedures, by the states and not by the federal courts, and because Roe versus Wade was wrongfully decided, the Supreme Court will bring us back to where we were in January, early January of 73. That's when Roe versus Wade came down and leaving all of this up to the states. Now, this is not a surprise. The surprise this morning is that somebody leaked this. It's a small circle of people who have access to draft opinions of Supreme Court justices before these opinions are made final. This is a bit of a black eye to the court, but it's just a black eye. It will heal. Will the court release the opinion sooner?

Because this came out, I doubt that the court is going to respond and change its schedule because of the leak or who might have leaked it. I mean, the theories are crazy this morning. One side said it was leaked by a conservative justice who wanted to lock the other conservative justices in or somebody who worked for a conservative justice. Another side says it was leaked by a liberal justice or someone who works for a liberal justice in order to galvanize opposition to this to try and change some people's minds. There's no dissent that was leaked. There's no indication of how the Chief Justice would have voted. The five who opposed Roe versus Wade are no surprise. They stood fast

when the state of Texas nullified Roe versus Wade, when it enacted its own abortion legislation that prohibited abortion after six weeks, whereas Roe doesn't allow the states to prohibit until after 23 or 24 weeks. The five conservative justices refused to interfere with Texas's decision, so it's no surprise as to how they voted. What happens here? What happens now? Take a look at this tweet from Senator Bernie Sanders, who, like a lot of people on the left, is furious. Congress must pass legislation that codifies Roe versus Wade as the law of the land in this country now, N-O-W in caps. And if there aren't 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes. That's probably the reaction that you'll see on the

part of the left, both in the Senate and in the House. Now, in order to end the filibuster, they need 50 votes. I don't think they have the 50 because I don't think they have the votes of Senator Sinema of Arizona and Senator Manchin of West Virginia to end the filibuster. So I don't think any codifying of Roe versus Wade will become a federal statute. However, this will animate the left probably more than it animates the right. Those of us who believe that abortion is homicide have prayed for, argued for, and expected a decision like this for months and years. But those who believe that somewhere, somehow, there is a right to kill a baby in the womb never thought this day would come. They will be animated politically, and that will probably have an effect on the midterm elections this November. Now, as for publishing this and leaking it, we know that publishing it is protected because it is a matter of public interest.

We know that from the Pentagon Papers case where Daniel Ellsberg stole defense secrets. He was a civilian employee of the Pentagon at the time, gave them to the New York Times and the Washington Post. The New York Times and the Washington Post published them. The Nixon administration attempted to enjoin the publication. The Supreme Court, by a vote of six to three, said it's a matter of public interest. It doesn't matter how the media got this. They can publish it.

So it doesn't matter how the media got this. They can publish it. So it doesn't matter how Politico got it. Politico is protected in publishing this draft opinion, as are all the other media outlets that have since published it. As for the leaker, you know, it will depend who the leaker is. If the leaker hacked into a Supreme Court computer system, then the leaker committed a federal crime of hacking. If the leaker is an employee of the court who had lawful access to this and decided to turn it over to Politico, that is not a crime. It's a fireable offense. It's an ethics offense. If the person is a very unhappy day for him. However, he's a strong-willed person. He is a person of historic, he's a historic figure in American history. He's young. He could be the Chief Justice for another 25 or 30 years. this will not affect the court's schedule

and it certainly won't affect the court's vote. So if this opinion of Justice Sam Alito is the court's opinion or something like it is the court's opinion, then Roe versus Wade will be gone the minute this opinion is published. The opinion upholding it, Planned Parenthood versus Casey will be gone the minute this opinion is published. There will be no federally recognized

right to an abortion either within the zone of privacy or anywhere else. An abortion will be left entirely up to the states. If a state wanted to ban abortion entirely, it could do so. If a state like New Jersey, where I am at the moment, and California wanted to permit abortion up to the moment of birth, it can do so. The country will be divided on this, just like it is on a lot of other issues that are left up to the states. In New Jersey, if you can't afford an abortion, the state will pay it for you, pay for it for you. California trying to outdo New Jersey says, well, not only pay for the abortion, we'll pay for your trip to California and your lodgings here while you're here to have this awful procedure performed.

Would I have voted with the majority? I would have concurred in the outcome. I would have agreed that Roe versus Wade was egregiously wrong 50 years ago and is egregiously wrong today, and the same with Planned Parenthood versus Casey. But I would have written a separate opinion arguing that the baby in the womb is a person and all abortion is homicide. And under the Equal Protection Clause of the 14th Amendment, which requires the states to protect people equally,

just as it protects postnatal persons from homicide. It must protect prenatal persons, otherwise known as babies in the womb from homicide. That's what I would have done. That doesn't appear the direction that the court's going to go in. So a partial victory for right to life in that Roe versus Wade is gone. And in half to two thirds of the country, there will be no abortions, but not a full victory, because places like New York and New Jersey will continue to slaughter babies and boast about it. Judge Napolitano for Judging Freedom.