This story originally appeared in The Insider.
Move over, Deep Throat. Scoring a seismic news leak that must have left the editors at the Washington Post green with envy, Politico on Monday, May 2, published a 98-page draft of Supreme Court Justice Samuel Alito’s majority opinion that would overrule Roe v. Wade. Even seasoned court watchers were shocked both by the combative content of the draft, which would overturn 50 years of settled law and obliterate a woman’s constitutional right to an abortion, and by the unprecedented breech of Court secrecy. But less than 24 hours later, Chief Justice John Roberts angrily confirmed that the draft was authentic.
The draft, circulated on February 10, indicated that the five ultra-conservative justices on the high court — Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — had initially voted to overturn the decision. It is not clear whether Chief Justice John Roberts would concur in completely overturning Roe v. Wade or dissent in part. There is no question, however, that the three remaining liberal justices, Stephen Breyer, Elena Kagan and Sonia Sotomayor would vehemently dissent.
By Tuesday, there were demonstrations nationwide protesting the opinion. Democratic Sen. Elizabeth Warren of Massachusetts joined the large demonstration that gathered in front of the Supreme Court building. She was as mad as hell. While others have been making rhetorical pronouncements about the draft or about the leak, Warren offered straight talk, showing the passion and sense of fight that the Democrats should be expressing on all of the assaults on democracy, of which this attack on women’s rights is only one. As The Cut suggested, Warren “looked just about ready to explode.”
Elizabeth Warren is our Sam Adams — the passionate firebrand the Democrats need. If the nation is to overcome all the anti-democratic attacks arrayed against it, other Democrats need to find a fervor and drive within themselves that matches hers.
Approached by reporters while making her way through a crowd, Warren declared:
I am angry. I’m angry and upset and determined. The United States Congress can keep Roe v. Wade the law of the land. They just need to do it.
“Republicans have been working towards this day for decades. They have been out there plotting, carefully cultivating these Supreme Court justices so they could have a majority on the bench who would accomplish something that the majority of Americans do not want. Sixty-nine percent of people across this country, red states and blue states, old people and young people, want Roe v. Wade to remain the law of the land. We have a right. We’ve heard enough from extremists and we’re tired.”
In stating that the Congress could “keep Roe v. Wade,” Warren was referring to the Women’s Health Protection Act, which aimed “to protect a person’s ability to determine whether to continue or end a pregnancy, and to protect a health care provider’s ability to provide abortion services.” The bill, meant to guard against the Court’s anticipated overturn of Roe, failed in the Senate in March because one Democract joined all Republicans, preventing it from being brought up for debate.
Who was the Democrat? West Virginia Sen. Joe Manchin, of course.
Manchin’s reaction to the leak of Alito’s draft decision was his usual stiff-necked response: “The filibuster is the only protection we have in democracy. I’m not going to comment on a leak from the Supreme Court.”
Arizona Democratic Senator Kyrsten Sinema, the other staunch protector of the filibuster, tweeted her usual mealy-mouthed lip service that “a woman’s health care choices should be between her, her family, and her doctor,” and that protections in the Senate safeguarding against the erosion of women’s access to healthcare “are more important than ever.” Sinema claimed that “Throughout my time in Congress, I’ve always supported women’s access to health care, I’m a co-sponsor of the Women’s Health Protection Act, and I’ll continue working with anyone to protect women’s ability to make decisions about their futures.”
These are empty words. It is entirely disingenuous for Sinema to say she will “work with anyone” to protect women’s ability to make decisions about their future, when experience has taught us all — her included — that there are not even 10 Republicans who will, in good faith, work with her.
As Rep. Alexandria Ocasio-Cortez tweeted: “We could protect Roe tomorrow, but Sinema refuses to act on the filibuster. Until that changes, she can take a seat talking about “women’s access to health care.”
If the hypocrisy of Manchin and Sinema is unrelenting, the even more transparent hypocrisy of the Republicans is nauseating.
Maine Republican Sen. Susan Collins — who has, in the past, advertised herself as a “liberal” Republican who supports women’s reproductive rights — voted to place both Gorsuch and Kavanaugh on the Supreme Court.
In 2019, Collins defended her vote to confirm Kavanaugh, saying in an interview with CNN that, despite his vote in a recent abortion access case, she did not believe he would ultimately vote to overturn Roe v. Wade. Even at the time, one would have been justified in asking whether Collins was born yesterday — or, like the rest of her ilk, was pandering for support from the right wing of the Republican Party.
On Tuesday, in reaction to Alito’s draft, Collins said: "If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office."
Asked if she was misled by Kavanaugh, Collins told CNN, "My statement speaks for itself." So, even now, when the nation’s women are reaping the bitter harvest that Collins sowed with her votes for these men, she can’t bring herself to acknowledge straight out that they lied to her. After all, one never knows when the wind will change direction, and who can afford to lose those campaign dollars?
Alaska Republican Sen. Lisa Murkowski hedged in her own way, saying, “Roe is still the law of the land. We don’t know the direction that this decision may ultimately take.” She further said, “Sen. Collins and I in February introduced a bill that would codify Roe v. Wade. I thought it made sense then and I think it makes perhaps more sense now.”
Of course, it’s easy to have it both ways by introducing a bill that, because of the filibuster, you know has no chance of passing. At least, Murkowski was willing to say, "If it goes in the direction that this leaked copy has indicated, I will just tell you that it rocks my confidence in the Court right now."
As one would expect, Republican Minority leader Mitch McConnell immediately tried to deflect attention from the substance of Alito’s opinion to the leak, claiming it was part of “the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.” This from the master manipulator who tried to prevent former President Trump from being tried by the Senate for his actions related to the January 6 mob attack on the Capitol and, when Trump was tried, voted against conviction. Talk about the deliberate projection of one’s own actions!
There’s no indication that the leak violated any laws, but that didn’t stop both McConnell and Sen. Ted Cruz from calling for prosecution of the leaker if and when found. All their hyperbolic huffing and puffing of hot air makes one crave an open window.
On the other hand, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer issued a statement reading: “The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination” and that several of those Justices “lied to the Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation.” They added that every Republican senator who voted for Trump’s justices “will now have to explain themselves to the American people.” Would that this statement should come to pass! I have my doubts.
Though the Pelosi-Schumer statement rightly condemns what the justices are doing and uses strong language to do so, it still does not call for strong corrective action.
Rather, it is Elizabeth Warren who is laying out what needs to be done. Sharply and succinctly setting out a plan of action, she tweeted the battle cry:
End the filibuster. Codify #RoeVWade with a national law protecting abortion rights. Expand the Supreme Court. Stop this horrifying injustice in its tracks.
Warren for President 2024, anyone?
Political columnist and Oak Park native Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books and a dabbler in political cartoons at Daily Kos.