The leak of the draft in the SCOTUS Dobbs v. Jackson Women's Health case - initial thoughts

 1.) At this moment, far and away the most pressing question is, who leaked it? It seems pretty damn likely it was someone, like a clerk for a progressive justice, who wanted to catalyze a firestorm. A pre-emptive strike, if you will. The Justice Department must spare no resources in finding out who it was, and meting out the severest possible punishment.

2.) Why do I state this so strongly? I'll let this paragraph from a National Review editorial this morning explain:

The legitimacy of the Supreme Court’s vital constitutional duty to pronounce authoritatively what the law is in cases where it is called to do so hinges on the integrity of its process. The Court has thus been admirably disciplined about maintaining the secrecy of its deliberations until rulings are announced. Without that discipline, the Court’s decision-making would be subjected to intense political pressure — the very antithesis of a system that insulates the judiciary from politics so that cases can be decided pursuant to law, without fear or favor. The Court’s vital constitutional role, vindicating a rule of law not men, would be destroyed. Worse, the leak could inspire violence against the Court or the justices.

3.) Here's what to remember when stare decisis is brought into the discussion/screaming match:  If we as a country had never questioned that concept's sacrosanctness, Dred Scott and Plessy v. Ferguson would never have been overturned. 

4.) That the opinion was authored by Alito and not Roberts is noteworthy, to say the least. Roberts is an enigma; Alito is not. Let us remember that Roberts opined in 2012 that the Affordable Care Act individual mandate was a tax, thereby letting the ACA live to see another day (and still impose bureaucracy and redistribution on our health care system). On the other hand, in 2015, his dissent in Obergefell v. Hodges took straight aim at the use of the substantive-due-process concept as the basis for the majority opinion:

Roberts reminded the Court that its leading substantive due process precedents require any claimed right to be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” In short, legal history matters enormously. There can be no “right” that blatantly contradicts the laws widely embraced by states at the time the Constitution or the 14th Amendment was ratified.

5.) Bravo to Alito for forthrightly stating that the Roe v. Wade decision was shoddy in the extreme and had nothing to do with relying on the U.S. Constitution, as has been acknowledged for decades:

"What is frightening about Roe," noted the eminent constitutional scholar and Yale law professor John Hart Ely (who personally supported legalized abortion), "is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. … It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

6.) The whole abortion conflagration is of a piece with the general obliteration of a historically (and biologically) grounded notion of what human nature is. I know I keep hearkening back to Carl Trueman's book, but that's because it lays out how we got here so methodically. 

I'll once again reprint the short review I wrote about it at Precipice last November:

The Rise and Triumph of the Modern Self: Cultural Amnesia, Expressive Individualism and the Road to Sexual Revolution by Carl R. Trueman examines the process over the last few centuries by which sexuality became the overriding factor in summing up an individual human being’s identity. Throughout the work, he reminds the reader that this has not always been the case.

The first major figure in his lineage of thinkers who brought us to our present juncture is Jean-Jacques Rousseau, whose essential contribution was the focus on the inward psychological life, as opposed to presumptions, norms and institutions developed over the course of a society’s evolution. From Rousseau we get the notion that the individual can decide for himself or herself what will best enhance well-being.

He puts together three figures from the Romantic period of English literature - Wordsworth, Shelley and Blake - as having given us the view of “feelings and instinct as lying at the heart of moral action and what it means to be truly free and truly human.” Shelley, in particular, was pretty radical in embracing this position, asserting that monogamous man-woman relations was harmful to expressions of the way people naturally are.

He puts together in one chapter another trio, this one from a few decades later. There are important distinctions to be made between Nietzsche, Marx and Darwin, but together they did much to point Western civilization in a materialistic direction. Their common basis was viewing the world as having no significance or meaning beyond that imparted by human action.

Next up, Trueman discusses Freud, with particular interest in Freud’s concept of happiness as being rooted in genital pleasure, and what that has meant for the whole field of psychoanalysis. 

He then looks at the roles played by Wilhelm Reich and Herbert Marcuse in bringing together the lineage of thinkers, in particular Marx and Engels, who put the power dynamics between society’s classes front and center, and the primacy of sexuality in the search for a stable society that Freud brought to the table. 

Trueman does a great job of presenting the case that the surrealist movement in art moved the entire impetus along. Ditto his look at how Hugh Hefner’s putting the sheen of sophistication over the commercialization of erotic arousal has had ramifications up to the present day.

Trueman’s meticulous. You may find yourself going back to previous chapters to reread something that seemed arcane at the time, but that you now see as having planted the seeds of future developments. By the time you get to the chapters on how eroticism and a therapeutic framework triumphed in our culture, and, finally, how transgenderism came to be mainstreamed in an alarmingly short time, you can see the thread tying it all together with unsettling clarity. 

Along the way, I was introduced to some minds I had at best only a glancing acquaintance with who have informed Trueman’s thinking. Now I’m inspired to further investigate Philip Reiff, Augusto Del Noce, Alasdair McIntyre and Charles Taylor.

A few weeks ago, in another Precipice piece, I did acknowledge that some caution is warranted in finding the degree to which one ought to align with Trueman:

The case could be made that one ought to be wary of Trueman, given his friendship with Rod Dreher. Dreher is one of those once-admirable conservatives - reliably Christian, no less - who have undergone a dismaying and perplexing transformation. Dreher’s been spending an increasing amount of time in Hungary, because he greatly admires Viktor Orban. Orban is poised to seriously dent the European unity that has been such a support to Zelensky and Ukraine. Dreher’s also on record as claiming that Tucker Carlson is the most important - and he means that in a good sense - commentator on American television today.

Trueman has also gone after David French, falsely painting him as motivated to write for Time and The Atlantic to be accepted by secular culture elites. 

But even if one doesn’t wade into the internecine squabbles among evangelical intellectuals, there are other grounds on which to argue that we’re treading on entirely unexplored territory. 

A look at the sweep of history reveals how recent this experimentation with the basic dichotomy of human nature is. In what culture, anywhere in the world at any time prior to the last thirty years at the outside, did marriage ever mean lifetime union of two people of the same sex? Where were the men who felt that they were women and vice versa, even after Rousseau and Shelly had begun the process of eroding our civilizational foundations?

But ultimately, he has secular substantiation for his basic point on his side:

A look at the sweep of history reveals how recent this experimentation with the basic dichotomy of human nature is. In what culture, anywhere in the world at any time prior to the last thirty years at the outside, did marriage ever mean lifetime union of two people of the same sex? Where were the men who felt that they were women and vice versa, even after Rousseau and Shelly had begun the process of eroding our civilizational foundations?

But wholehearted enthusiasts of such experimentation are hot to silence and marginalize those who point this out. More saddening is the sight of those who claim to want to restore conservatism to its commonly understood foundation saying, “This stuff is a done deal. We’ve expanded the definition of what it means to be human and that’s that.”

7.) This leak, and the case to which it pertains brings to the fore once again, as these "culture wars" battles always do, the essential question of whether there is a basic architecture to the universe and, if so, if there's any cost to us flouting it. I think I'll further flesh out this point in a Precipice piece, but, for now, I want to make sure that this point is out there.