Reacting to the Supreme Court Leak
I am not an “expert” on the US Supreme Court, but I am a member of the Bar of the Supreme Court, a federal court practitioner, and I participated in 2 arguments before the High Court. Here are a few random thoughts about the latest bombshell from the Court–
1) The release of a draft opinion is highly controversial. This rarely happens. Someone is in big trouble.
2) A draft opinion is a draft. It is a solid indicator the Court voted in private conference to overturn Roe v. Wade. However, things can and do change from an initial vote. The release of the draft COULD impact how the Justices finally vote. Nothing is final until the Court formally releases an opinion.
3) If the Court overturns Roe, it doesn’t mean abortion becomes illegal. A lot of folks overlook the nuance of what the Court does. This goes all the way back to Marbury v. Madison–the Court declares what the law is. In other words, the Court decides what the Constitution means when it comes to constitutional rights. If Roe is overturned, the Court is saying that the right to an abortion is NOT found in the Fourteenth Amendment. This means it is a political decision of the federal or state governments.
4) Overturning Roe and adopting a conservative view of constitutional interpretation is a very big deal. One thing to keep in mind is that a conservative view of the Constitution (i.e., strict constructionism or originalism) has nothing to do with a person’s view of abortion. It is possible to be in favor of abortion as a birth control method, but still find that the right to an abortion does not exist in the Constitution.
5) Full disclosure–I am a member of the Federalist Society and have been since law school. I was the law student contact for the Federalist Society at DePaul Law School in 1983. The Federalist Society promotes a conservative view of interpreting the Constitution. If Roe is overturned, I strongly believe it has roots in the creation of the Federalist Society back in the early 80s. Justice Scalia (before he got on the Supreme Court) was a prominent Federalist Society speaker and backer.
Charles E. Hervas is the managing partner at Hervas, Condon, & Bersani, P. C. He commented on the case in a post we ran December 7, 2021, “What Will SCOTUS Do?”
Photo by Adam Szuscik on Unsplash
Excellent summary and greatly appreciated. It has been a long time since I first met you at a Brentwood school function. Sure glad that you were one of those early respondents to the call for young people to enter the legal profession. Your careful commentary and guidance has been wise and faithful to constitutional principles.