The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On November 2, 2021--the day after S.B. 8 oral arguments--I wrote a post titled "End the Epicycles of Roe." I highlighted the many ways in which Roe has distorted other areas of law, including stare decisis, freedom of speech, facial challenges, tiers of scrutiny, and third-party standing. Justice Alito made many of these same points in Part III.D of his draft majority opinion:
Members of this Court have repeatedly lamented that "no legal rule or doctrine is safe from ad hoc nullification by the Court when an occasion for its application arises in a case involving state regulation of abortion." Thornburgh (O'Connor, J., dissenting); see Madsen v. Women's Health Center, Inc. (1994) (Scalia, J., concurring in the judgment in part and dissenting in part); Whole Woman's Health (THOMAS, J., dissenting); id. (ALITO, J., dissenting); June Medical (GORSUCH, J., dissenting). The Court's abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court's third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.
The leak is a manifestation of yet another abortion-based epicycle: the breach of Courtroom confidentiality. Someone (we do not know who) thought the issue of abortion was significant enough to justify leaking a draft majority opinion to the press. I had long presumed such a leak would have been unthinkable, but abortion drives people to such extremes. This ultimate breach in Court confidentiality provides yet one more reason why the Supreme Court must exit the arena of abortion. Hopefully, this leak will be Roe's final epicycle.