The leak of Justice Alito’s draft of the majority decision in Dobbs v. Jackson Women’s Health Organization, unfortunate as it may be, should not delegitimate the US Supreme Court.

If a snarky, plotting, election-related draft had been revealed, that would have truly delegitimated the court. But in the draft one only finds very solid scholarship, even if one disagrees with it. It’s exactly the sort of thing that one would have wished for in a profoundly serious, deeply researched opinion.

Why should close reading, historical insight and an abundance of footnotes delegitimate the Court?

As a pro-life writer, I actually was a bit disappointed in the draft’s content. It contains no mention of the horror of abortion, except for a few initial citations from Mississippi. Nor does it mention any of the procedural flaws of Roe, especially the lack of a factual record (re life and re women) tested at a trial proceeding. And, an even bigger gap, it doesn’t mention any of the arguments that abortion hurts women. (Justice Kennedy did better a few years ago.)

So I think Justice Alito bent over backwards to go easy on the supporters of abortion. His text only hammers hard at the surface incorrectness of the reasoning of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.

In this regard, the leak has a silver lining. People will read through the draft opinion with greater care than they would ordinarily lavish on an actual Supreme Court opinion, where only the final result matters to most of us. Of course, even here many will be only concerned with where Alito comes out, but even then they will scrutinise it in order to figure out the best counterblow. And people find it plain exciting to read stuff that’s supposed to be secret.

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