Politico Published An Apparent First Draft of Dobbs, Which Overruled Roe

The purported majority opinion by Justice Alito is 98-pages long.

My speculation that there was a leak in Dobbs looks stronger. Josh Gerstein and Alexander Ward of Politico have published a scanned document that purports to be a first draft of Dobbs that was circulated on February 10, 2022. No, I am not going to link to it. I will discuss the import of this leak in another post.

Comments

[BravoCharlieDelta]

Moloch Worshippers and other elite Democrats are the most heartbroken, until Blue States and Blue Cities legalize post-birth abortions like VA and CA did.

[Aladdin's Carpet]

I have pretty moderate views on abortion generally, I was extremely pro-life in high school and, like many people (particularly men) with that view, I grew up and moderated it, so my view is roughly, my morality is pro life, it should not be stste legislated, but the states themselves also shouldn't be controlled by the Supreme Court, so I dont really have a dog in this fight, however ...

this leak is a serious ethical violation and I hope they find who did this and that person faces many penalties. Leaking stuff like this is flat out unacceptable.

And besides, the later drafts are usually more moderate than initial drafts, but only if a justice can work things out with colleagues without the public interfering in deliberations in this manner.

[JJJSSS]

I'm not sure we have enough evidence from the public interfering in deliberations in this manner to draw an inference from how it affects the Court- as in, there are a few cases where some tidbit of information has been leaked, but never one where an entire majority opinion draft came out.

[Flight-ER-Doc]

Since men now can menstruate and bear children, we all have a dog in that fight.

And I agree in part: The decision is not a federal one. It should be left to state rule.

[Noscitur a sociis]

By far the greatest fallout from this will be the effect on Prof. Blackman.

[Leo Marvin]

Indeed. Thoughts and prayers.

[Sebastian Cremmington]

I’m reading the opinion and Alito is sticking with the notion that 2A was initially drafted to protect the RKBA of individuals in DC and federal territories. So he states that the BoR was initially only a limit on the federal government—so how can the 2A have been drafted as an individual right?!? Such a head scratcher. More ANALysis to come!

[Sebastian Cremmington]

I would have liked to see a mention of Stevens’ McDonald dissent with respect to “liberty interests”. Liberty interests and not the 2A is where the RKBA derives from after all.

[Sebastian Cremmington]

The history of laws is sort of dumb because of the reality of the patriarchy. So with respect to civil rights you can strip everything down to laws with respect to white individuals…but with abortion you can’t do that because women didn’t have the same rights as men and so abortion laws would have reflected that reality…so who know how a legislature with women in it would have voted with respect to abortion laws??

[Sebastian Cremmington]

The way you attack the history of laws is borrow from Justice Thomas with respect to guns in which he labels all gun control measures racist and as a way to keep guns out of the hands of Blacks…Ipso facto—our tradition of passing gun control measures is illegitimate and therefore we should ignore the history of ubiquitous gun control measures even by legislators that hold themselves out as pro-2A.

Of course Thomas doesn’t find racism anywhere else and the vast majority of victims of gun violence today in America are young Black males that get their hands on guns and kill other young Black males.

[David Nieporent]

Such a head scratcher.

Only because you're still too stupid to understand the difference between where the right is protected and against whom the right is protected, despite being told many times.

[Sebastian Cremmington]

The several states started infringing the RKBA early on and so citizens in those states did not live in a “free state”.

[Commenter_XY]

David....O/T...would be interested to hear your perspective on the ethics of leaking a draft opinion. You practice in Second District at appellate level, correct?

[David Nieporent]

I'm not really clear what needs to be said. It's not like there's any room for debate on the ethical question; there's no colorable argument that it's allowed. It's a disbarrable offense.

(I mostly practice at the trial level, but yes, I do practice in the Second Circuit, which is what I assume you meant, also.)

[Sebastian Cremmington]

Alito provides the framework to overrule Heller/McDonald…much respect.

[Michael Ejercito]

In what way?

[Sebastian Cremmington]

If a ruling is absurd then stare decisis does not have to be respected.

[Michael Ejercito]

The same way the 1A was drafted as an individual right, but did not prohibit states from executing persons who criticize public officials.

[Sebastian Cremmington]

1A specifically refers to Congress. I personally believe the 2A specifically refers to the state militias and state governments but Scalia asserted that militia referred to the unorganized militia and free state referred to any old free country.

[Sebastian Cremmington]

Bottom line—Alito’s opinion is solid and the only way to attack it is to attack the patriarchy. Of course the legislatures now have women and so if those legislators ban abortion then that pretty much undermines the patriarchy argument just like how Black legislators vote for gun control measures undermines Thomas’ argument line of reasoning that past gun control measures are racist and therefore illegitimate with respect to Constitutional ANALysis. Furthermore, Alito creates the framework to overrule incorrect opinions like Heller/McDonald going forward.

[M L]

"he states that the BoR was initially only a limit on the federal government"

Obviously true.

"so how can the 2A have been drafted as an individual right?!?"

Absolutely nothing inconsistent about these two things.

[Sebastian Cremmington]

Except Scalia asserted that the 2A states that everyone trained to arms is necessary to the security of a free country and so the RKBA shall not be infringed…and then the states started infringing the RKBA and thus undermined the 2A very quickly. Now if the word “militia” refers to the organized militias then the states infringing the RKBA doesn’t undermine the 2A…such a head scratcher. 😉

[M L]

Ok keep on trollin' friend.

[Sebastian Cremmington]

Sure, it’s not a federalism provision but an amendment specifically drafted to apply to citizens in DC and federal territories. Such a head scratcher. 😉

[MollyGodiva]

Right now is like watching a slow motion video where the shit is about to hit the fan. You know what is coming next and it will be very painful to watch.

[ReaderY]

What do you see as coming next?

[ReaderY]

Although the opinion cites Glucksburg, the standard for recognizing an unenumerated right is straight out of Bowers v. Hardwick.

[Charles Nichols - CRTC]

If the draft opinion is genuine, which it seems to be, then Justice Alito is not going to contrive a right to concealed carry that did not exist, which the NRA attorney Paul Clement conceded did not exist, when the Second and Fourteenth Amendments were enacted.

Clement proposed a "different wavelength" framework for deciding Second Amendment claims. Specifically, states and local governments today can ban Open Carry in favor of concealed carry simply because they don't like Open Carry.

Clement skipped over the fact that New York State does not ban the Open Carry of ordinary loaded or unloaded rifles and shotguns. and so so without a permit.

Clement also skipped over the fact that if one with a license to carry a handgun concealed were to openly carry the handgun then, as the State of New York pointed out, there are no state criminal penalties that person would be subject to, provided that he did not possess the handgun in a place where it is a crime for him to possess the handgun.

According to the State of New York, the worst that could happen is that the license would be revoked.

And given that Justice Thomas is even more of an originalist than Justice Alito then I don't see him contriving a concealed carry right that never existed.

Now ask yourself if there are three additional justices who are unwilling to contrive a right to concealed carry that is protected by the Second Amendment.

[Sebastian Cremmington]

I think they will rule we have a right to carry guns outside the home…but it can be so regulated at the municipal level as to ban carry outside the home by a city like NYC and Boston. The notion school zones wouldn’t withstand even rational basis would be a usurpation on the same level as Roe. And at the federal level remember we have domestic flights in which gun regulations would certainly pass rational basis.

[SRG]

The leak is an ethical violation. It is not as grave an ethical violation as lying about one's views and intentions re Roe vs Wade during Senate nomination hearings. Until that gets addressed, I don't give a shit about the leak.

[TwelveInchPianist]

Great News! There's no evidence that any of that happened.