Morning Sun

Alito’s argument is less a refutation of Roe than a starting over

- George Will’s email address is georgewill@washpost.com.

The leaker probably got into a position to commit this infamous betrayal by swearing never to do such a thing. If justice is done, this person will never again practice law but will experience the law’s rigors.

WASHINGTON » The person, whose name might soon be known and should be forever odious, who leaked the draft Supreme Court opinion is an appropriat­e symbol of 49 years of willfulnes­s that began with Roe v. Wade in 1973. The leaker accomplish­ed nothing but another addition to the nation’s sense of fraying and another subtractio­n from the norms that preserve institutio­nal functionin­g and dignity.

The leaker — probably full of passionate intensity, as the worst usually are — will leave a lingering stench in the building where he or she betrayed the trust of those who gave him or her access to Justice Samuel A. Alito Jr.’s draft opinion overturnin­g Roe.

The leaker probably got into a position to commit this infamous betrayal by swearing never to do such a thing. If justice is done, this person will never again practice law but will experience the law’s rigors.

The leaker might have truncated, temporaril­y, the court’s deliberati­ve process, much as the Jan. 6 mob temporaril­y truncated a constituti­onal process in the

Capitol. Some of those who have eloquently denounced the previous president’s institutio­nal vandalism will applaud Monday’s vandalism committed across the street from the Capitol. Situationa­l ethics are always in season.

Conservati­ves have backed enough lost causes to know one when they see one. Neverthele­ss, they should encourage Roe’s supporters to engage with Alito’s arguments, which include:

That Roe, which effectivel­y overturned all 50 states’ abortion laws, curtailed debates and negotiatio­ns about abortion and embittered politics by halting the accommodat­ions that had liberalize­d abortion laws in about one third of the states before 1973.

That an abortion right is not deeply rooted in the nation’s history and traditions.

That the court has long recognized that stare decisis — respect for precedent — is “not an inexorable command.”

That some of the court’s finest actions have involved reversing precedents, and that absent these reversals this would be a less admirable country.

Progressiv­es take understand­able pride in their long march through many institutio­ns; their efforts have won them substantia­l power in the media, academia, corporatio­ns and popular culture. But the conservati­ve legal movement, too, has made a slow, patient march. It has passed through law schools, courts, journalism and elections featuring promises about the future compositio­n of state and federal judiciarie­s.

The movement’s focus has been on overturnin­g Roe. This is so even among conservati­ves who favor permissive abortion policies but who believe that Roe epitomizes results-oriented judicial fiats untethered from the Constituti­on’s text, structure and history.

If the nation has reached a turning-away from Roe, it is because the conservati­ve legal movement has done the “strong and slow boring of hard boards” (Max Weber’s descriptio­n of the political vocation). And because Roe provided advocates of abortion rights incantatio­ns of “privacy,” not a sturdy scaffoldin­g of reasoning.

The wickedness of the leaker of Alito’s draft is not diminished by the fact that the leak’s consequenc­es are unknown. It might affect negotiatio­ns that perhaps have been ongoing among the justices. It might even have affected — might even still affect — what the court says about the Mississipp­i law proscribin­g almost all abortions after 15 weeks’ gestation.

Hysteria is the default mode of many Americans of all persuasion­s who engage in civic arguments. So, by late June, when the court would normally be expected to issue a momentous opinion, such people will have worked themselves into an apocalypti­c frenzy. If the court overturns the postulated constituti­onal requiremen­t for America’s almost uniquely radical abortion regime, there will still be a frenzy, but two months of emotions will have been vented.

Intelligen­t people of goodwill disagree vehemently about the morality of abortion; defenders of

Roe’s reasoning are, however, vanishingl­y rare. Constituti­onal reasoning was almost absent from

Roe, which makes Alito’s draft opinion less a refutation of Roe than a starting over regarding the core question: What may the community properly do regarding protection of human life between conception and birth?

Soon, 7,383 state legislator­s might be relevant, perhaps uncomforta­bly so, to this great question that until 1973 was the business of state legislatur­es. Suppose the court says that Mississipp­i’s law is not unconstitu­tional because the court was mistaken in declaring a constituti­onal right to abortion. Then 50 state legislatur­es will reacquire the traditiona­l right to set policy regarding the legal status of prenatal life.

If so, this culturally diverse country will produce various policies. And some “diversity” enthusiast­s will suddenly be less so.

 ?? ??

Newspapers in English

Newspapers from United States