On Monday, a draft Supreme Court judgment overturning Roe v. Wade was leaked, signaling the end of a nearly 50-year-old ruling guaranteeing federal protection for abortion rights.
However, many conservative politicians and pundits have argued that the main news isn't the opinion or its far-reaching ramifications for reproductive rights, but rather the fact that it was leaked. They say that national fury should be focused only at the person or persons who defiled the high court's holy honor by disclosing the draft.Nobody should be fooled: the reason right-wingers have suddenly become fans of propriety is that so much of their political agenda needs them to use the Supreme Court to achieve policies that are far too unpopular to be implemented through the democratic process.
Republicans rely on institutions that operate outside of or in opposition to the majority rule idea.
The publication of the draft opinion by Politico, which is not final, appears to be unprecedented in contemporary American history. It's a remarkable break of protocol in an institution defined by great privacy, and it's a sign of how the Supreme Court's reputation as apolitical institution is eroding.
The leaker appeared to be attempting to sway the justices' final decision on whether to overturn Roe v. Wade by igniting public debate and indignation, as well as reshaping the political environment ahead of the midterm elections. The leaker's ideological leanings, however, are unknown. Observers of the Supreme Court have suggested that they could be from either side of the abortion rights debate, trying to either weaken or secure the present anti-abortion majority on the court through public pressure.
Even in the absence of evidence that the leaker was a pro-abortion rights individual, many on the right have come to the conclusion that the leak was a heinous act. In truth, it was a heinous deed.
"You need, it seems to me — excuse the lecture — to concentrate on what the news is today: not a leaked draft, but the fact that the draft was leaked," Senate Minority Leader Mitch McConnell, R-Ky., told reporters Tuesday. Sen. Marsha Blackburn, R-Tenn., a member of the Judiciary Committee, called the leak "an attack on the court," while Sen. Ted Cruz, R-Texas, called it "the mostRight-wing commentators took their obsession with the leak even farther. In its narratives, Fox News has focused heavily on the leak. On Twitter, Daily Wire anchor Matt Walsh described the leak as "a 100000000 times more dangerous attack on our system than the Capitol riot," while Breitbart News editor Rebecca Mansour stated that the leak had caused a "freakout," with the left demanding that the Supreme Court be "burned down" (Mansour did not provide any examples.)
Allow for the possibility that conservatives have no idea what the leaker's philosophy or aims are, and thus that assuming they're a liberal is incorrect. The big question is why are they now so concerned with norms?
When Republicans denied President Barack Obama's Supreme Court nominee, Merrick Garland, in 2016, it didn't matter what the rules were. When Republicans went "nuclear" and changed the filibuster to appoint Neil Gorsuch to the Supreme Court the next year, it didn't matter what the rules were. When Republicans used the filibuster more than it had ever been used before during the Obama presidency, ushering Washington into a new age of bad faith government, norms didn't matter. On everything from international diplomacy to the denial of a peaceful transfer of power, norms were methodically demolished throughout President Donald Trump's impeachment-defined presidency.The idea of a sacrosanct Supreme Court is important to Republicans because it is crucial to their philosophy of change: Republicans rely on institutions that function outside of or in opposition to the principle of majority rule.
Because the Electoral College system isn't based on popular vote, the GOP has been able to win many presidential elections in recent years — and George W. Bush's triumph in 2000 was secured by a politically sympathetic Supreme Court. Republicans also rely largely on the Senate, a legislative body that is structurally overrepresented in rural and conservative areas, to function as a check on Democratic legislation. They also use the counter-majoritarian filibuster rule to obstruct Democrats, even when they win a majority in a body that is rigged in favor of the right.
The Supreme Court is a key tool in this anti-democratic arsenal.
The Supreme Court is a key tool in this anti-democratic arsenal. It's a potent instrument for defending the right-wing agenda and destroying progressive reform because it's a branch of government that Republicans have constructed in their favor through a combination of simple luck and procedural power plays. Much of the right-wing agenda is widely unpopular and likely to provoke intense backlash, as New York magazine's Eric Levitz wrote in a sweeping essay about the right's attention to federal courts in 2020, and using courts allows conservatives to avoid the obstacles and consequences of achieving their goals.
"The conservative movement's fixation with the courts is, in some ways, a monument to its fragility," Levitz observed at the time. "There is no popular majority in the United States for prohibiting abortion, cutting the welfare state, or weakening core labor and consumer safeguards – and there never will be, based on the political attitudes of the millennial and Zoomer generations." In response to this reality, the right has flooded the judiciary with as many 40-something reactionaries as it can find."
Abortion rights are still widely supported, and reversing Roe v. Wade is unpopular. Republicans, on the other hand, are counting on "the fiction of an apolitical judiciary," as Jay Willis, editor-in-chief of the legal analysis newspaper Balls and Strikes, told me, to help them weather the backlash that will accompany an assault on abortion rights. While the GOP's naked exercise of power in the White House and Congress has become completely visible, the Supreme Court is the final arm of government where the right can veil its goal in ideas of rights and technocracy that transcend daily politics.
The right's long-term objective is to keep the Supreme Court's status as a group of high priests rather than ideologues. Willis told me that this leak, as well as any future releases, will help dispel that myth, which many liberals still believe, at an era when the Supreme Court is more conservative than it has been in almost a century.
"Like Moses descending from Mount Sinai, the court gets so much of its credibility by handing down its opinions," he remarked. "I believe that people would benefit from learning more about what happens within this black box and understanding that the justices are just like any other politician they watch on TV."
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