The Leaked Draft Opinion and the Class of 2022
The recently leaked draft US Supreme Court opinion states that Roe v. Wade “was egregiously wrong from the start.”
That said, I’m wondering if any other court in our nation’s history has ever issued an opinion that amounted to such a full-throated and unequivocal repudiation of an earlier court’s opinion.
I’m also wondering if this leaked opinion suggests that America is about to witness, as the President just said, a “fundamental shift” in U.S. law and a throw(ing) of a “whole range of rights” related to privacy into question.
I’m also wondering how the class of 2022 (and especially the students currently enrolled in my APGov class) would respond if called upon to answer the questions appearing below.
“In most contexts, the word egregious is used to describe outstandingly or shockingly bad, like a gross injustice, horrible fraud, or nasty personal injury. It is common to hear about egregious misconduct, an egregious liar, or egregious legal gaps.”
“In a legal context, the term egregious refers to actions or behaviors that are staggeringly bad, or obviously wrong, beyond any reasonable degree.”
If the above is true, then it sounds to me as if the 2022 court is wanting to place Roe, historically speaking, right next to Dred Scott, Plessy, and Korematsu in the category of “worst ever!” Doubt the Class of ’22 will want to do the same.
To learn the answer to the question of whether any other court in our nation’s history has ever issued an opinion that amounted to such a full-throated and unequivocal repudiation of an earlier court’s opinion, I reached out to several highly acclaimed constitutional law experts and the US Supreme Court Historical Society. Here’s what’s come back so far.
“Peter, the language about being wrong from the start comes from the opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). This was the Court’s way of explaining why Brown overruled Plessy and the New Deal Court overruled Lochner. It is of course a radically ahistorical way of looking at law — demonstrably incorrect as a matter of history. But there is a history of the Court speaking about its own pronouncement as though they were somehow outside of time and eternal.”
— Robert Post; Sterling Professor of Law; Yale Law School
I still seriously doubt that the full-throated and muscular words of the leaked draft, and especially the words suggesting that Roe was “egregiously wrong from the start,” will make it into the final draft.
The leak, surely destroyed any hope one might have had for Roe to go down like that, which, if true, could explain why the leak, and that is to pressure the court into producing a final draft that, as Obama said today, uses language that results in “a better balancing of the (competing) interests.”