The decision of the competent court is a solemn and majestic act of sovereignty. Such a ruling distinguishes the actions of a judge from the opinions of all others on what the law should be.
Prior to the actual ruling, U.S. Supreme Court judges had the opportunity to engage in thoughtful discussions among themselves, or in heated debates, or even in voting horses in one case for another. It all came out of the public eye.
The law was affected only when the judges officially made their decision. But now, with this shameful leak, the court has fallen into the realm of all other political players.
I have no idea what motivated the man who expressed the opinion, what a great political goal was pursued. I know that the damage done by this leak to the rule of law exceeds any purpose this man has served.
The judges decided, as in Texas, and just like the source of the information, that the goals justify the means that the rule of law could be overturned for the sake of a greater cause.
So it must be said that just as much damage to the rule of law was inflicted by judges on the day in December last year when a court refused to prescribe a Texas law banning abortion after six weeks of pregnancy.
In a real sense, that day the judges also traced the draft majority opinion in Dobbs.
By banning abortion long before viability, Texas law violated and was specifically designed to violate a constitutional standard that protects the right to abortion set forth in Rowe and subsequent cases.
This is a standard that overrides the draft opinion of the majority in Dobbs.
Usually, such a law, which clearly violates the regulated constitutional law, will be prescribed by lower courts.
But Texas law came upside down – it had to be enforced not by Texas officials, but by any member of the public who cared about it.
There was no one to sue to foresee the law because there could be no certainty as to who would enforce it.
Without a previous ban, the Texas law remained in force because its draconian provisions – $ 10,000 in compensation for damages paid to anyone who helped a woman have an abortion – forced abortion clinics to close for fear of breaking the law.
The Texas law remains in effect to this day, but has never been enforced.
Many students of the Constitution, including some, such as myself, who hoped Rowe would be repealed, expected the judges to review the absurd tricks of private law enforcement and justify the rule of law by repealing Texas ’unconstitutional law.
After all, if Texas could violate the constitutional right to abortion, then California could ban gun ownership or New York City pray in a church as long as the law is enforced by the general public. Until someone courageously breaks such a law, it will remain in the books, and many people may stop going to church or give up their weapons.
But judges refused to prescribe Texas law, despite its outrageous unconstitutional nature.
Now, with the leak of the draft detention in Dobbs, we can be sure that the real reason most judges refused to prescribe Texas law was that, in their view, Rowe had already been repealed. There was no constitutional right to abortion.
In other words, Texas could have banned abortion through a trick of public order, but California couldn’t do the same with guns or New York with prayer.
That’s why I say the judges had already traced the opinion to Dobbs long before some bereaved man did it last week.
To an ordinary person, it may seem unimportant that the judges refused to honor the holding, which, as they knew, would still be abolished soon.
But the rule of law depends on such formalism. It was the sacred duty of the judges to treat Rowe as the law of the country until the case was formally dismissed.
Instead, the judges decided, as in Texas, and just like the source of the information, that the goals justify the means that the rule of law could be overturned for the sake of a greater cause.
They were all wrong. The rule of law was painfully defeated. It is a solid foundation of a free society. Reason, not force, was to prevail in court.
Of course, the rule of law has always been partly a myth. There has always been some policy in the Supreme Court.
However, like any great myth, the rule of law also expressed the truth.
Today, with an episode of Texas law, and now with this leak, we are in a more politicized world where power is likely to prevail. We can only hope that a free society remains possible in such a new world.
Participant Bruce Ledewitz teaches constitutional law at Duken University Law School in Pittsburgh. His work appears every two weeks on the Capital-Star comment page. Listen to his podcast “Bends Toward Justice” here. His latest book, The Universe on Our Side: Restoring Faith in American Public Life, is out now. His views are inconsistent with the position of the Duke University School of Law.