The Supreme Court Leak

The overturning of Roe v. Wade will intensify the battle between the progressives’ constitution and the founders’ Constitution.

by Charles R. Kesler – Spring 2022 – the Claremont Review of Books

My cmnt: The now infamous Supreme Court decision of 1973 in Roe v. Wade to declare abortion a constitutional right will stand in history right next to the previous worst decision ever made by the Supremes in the Dred Scott decision of 1857. It took a costly civil war to reverse the right to slavery and nearly 50 years of hard political work, prayer and peaceful protest to place on the court originalists (textualists – that is, justices who interpret the constitution as written rather than as they might wish it to be) to reverse the right to murder the unborn (and in New York even the just born.)

From the Britannica:

Dred Scott decision, formally Dred Scott v. John F.A. Sandford, legal case in which the U.S. Supreme Court on March 6, 1857, ruled (7–2) that a slave (Dred Scott) who had resided in a free state and territory (where slavery was prohibited) was not thereby entitled to his freedom; that African Americans were not and could never be citizens of the United States; and that the Missouri Compromise (1820), which had declared free all territories west of Missouri and north of latitude 36°30′, was unconstitutional. The decision added fuel to the sectional controversy and pushed the country closer to civil war.

Among constitutional scholars, Scott v. Sandford is widely considered the worst decision ever rendered by the Supreme Court. It has been cited in particular as the most egregious example in the court’s history of wrongly imposing a judicial solution on a political problem. A later chief justiceCharles Evans Hughes, famously characterized the decision as the court’s great “self-inflicted wound.”


Lenin allegedly said, “There are decades when nothing happens, and there are weeks when decades happen.” He was supposedly discussing the Bolshevik Revolution, but the saying could be applied to America’s growing turmoil at home, too. After almost a half century of Sitzkrieg in the abortion wars, the recent leak from the Supreme Court suggests that within a month or two a major legal breakthrough may occur. The lines long established by Roe v. Wade in 1973 may be penetrated and overthrown.

Just how much of a revolution this will be remains to be seen. Justice Alito’s draft opinion would strike down Roe’s nationwide regime of permissive abortion rules but, rather than erecting a contrary regime, would basically return the question to regulation by the states. The abortion lobby will insist that resurgent federalism is a new and contrary regime. For five decades American abortion “law” has been set by the Supreme Court. The people’s representatives had almost nothing to do with it. The idea that the people of each state, making their own laws and constitutional arrangements, might choose their own abortion statutes is a breath of fresh democratic air and might even be called revolutionary, had not state governments been preparing for this moment for years—states like Utah and Mississippi to tighten their restrictions, California and New York to loosen them in order to become abortion sanctuaries.

Liberals believe, somewhat quaintly, that they command the moral high ground in American politics. They define that high ground as a series of ever-expanding doctrines of rights, designed to liberate minority groups whom they consider unpopular and oppressed, most recently, for example, the transgendered. (But not high-scoring Asian-American students, whom they seem to consider oppressive, not oppressed, and thus rightly unpopular.) The right to abortion liberals consider the holiest of holies, because this is both a socio-economic and an identity right, spanning racial and ethnic minorities, the poor, women, and especially white, single women, a key constituency. Is it only a matter of time before transgender abortions become the rage?

There is something, too, about the very unnaturalness of abortion that is attractive, particularly when celebrated as a right, of which recipients ought to be proud. It was 30 years ago when liberals like Bill Clinton took the demure position that abortion is basically a necessary evil that should be safe, legal, and rare. Neither he nor any other recent Democratic president would dare now to take that position.

The rights revolutions of the past half century were mostly secured by liberal judges, handing down what they hailed as epic decisions, and by helpful bureaucrats, writing and applying regulations based on those holdings. Those epic opinions were often a muddle—none more so than Roe v. Wade, as even its candid supporters admitted. “It’s a very bad decision,” wrote John Hart Ely, a Yale Law professor and former clerk to Chief Justice Warren, “because it is not constitutional law and gives almost no sense of an obligation to try to be.” Ruth Bader Ginsburg, who in the 1970s led the ACLU’s Women’s Rights Project, supported the holding but criticized the opinion for the rest of her life: it went too far. In the draft opinion smuggled out of the Court this week, Alito pronounced nothing controversial when he noted that Roe’s “reasoning was exceptionally weak.” Paradoxically, its very weakness as legal doctrine encouraged a fanatical political devotion to it.

Our new-fangled rights grow by means of what Robert Higgs, in a different context, called a “one-way ratchet.” Often in response to some crisis or scandal, our “rights” enlarge but never recede to the pre-crisis level. Ever upward is the only path liberal government permits, which is why the repeal of Roe would be devastating. “Our democracy,” as they call it, depends not only on never turning back the clock of social reform, but never even admitting such a thing is possible. Even if, as is likely, almost half the states would enact abortion regimes as permissive as, or even more permissive than, the current one, the game would be up. The nature of such modern rights would be exposed, unforgettably. It would be, as the liberals fear, a kind of revolution.

Which is why they have little choice but to object not merely to the leaked decision and the brave justices who support it, but to the whole system. To President Trump, who appointed three of those justices but never was “fairly” elected with a popular, non-Russian majority vote. To the Senate, which embraces minority rule through the filibuster and equal representation of the states. To the Constitution, systemically racist among other evils. Prepare for decades to happen in the next year or so of our politics, as the battle between the progressives’ constitution and the founders’ Constitution intensifies.

Charles Kesler is a Senior Fellow of the Claremont Institute, Editor of the Claremont Review of Books, host of Claremont’s The American Mind video series, and the Dengler-Dykema Distinguished Professor of Government at… read more

3 thoughts on “The Supreme Court Leak

  1. There would be a whole lot less demand for innocent human blood if serious capital crimes, where there is no doubt about the evidence of the case, were met with a very swift and public death penalty. Alas! I cannot even convince my own family members that it’s the biblical way to show mercy.

    It’s a scandal that there is not a universal death penalty for rapists, murderers, traffickers, child abusers, kidnappers, etc.


    1. I see the angle you’re taking here: It’s fine to be acute as long as you’re not obtuse at the same time, not to put too fine a point on it. But to the vertex of your argument I agree. Swift and certain punishment is a big deterrent regardless of what the Lib-Left say about the effectiveness of the death penalty. When we have any indisputable case of coldblooded, premeditated capital crimes – especially when committed by a career criminal with a history of malfeasance – it should always be met with a quick death. Making the taxpayer foot the enormous bill of housing and feeding such an offender for decades is simply outrageous and a direct product of the democrats ongoing effort to destroy our criminal justice system we have particularly seen since the BLM riots of 2020.


      1. I agree that the state does not need very many public executions for them to be an effective deterrent to lawlessness.


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