Florida Criminal Defense and DUI Defense Blog

11May, 22

SCOTUS LeakWell, of course, everybody is talking about Politico publishing the leaked draft of the United States Supreme Court abortion ruling that’s going to overturn Roe vs. Wade. Well, as a man, I don’t have the right to make decisions about women’s health issues. So I’m going to talk about the court and how they go about doing their job. And if I have time, I’m going to tell you who’s to blame for this.

First of all, the Supreme Court has not always had nine members. There used to be fewer. Someday, maybe there will be more. We’ll come back to that in a little bit. But when the Supreme Court takes a case, both sides brief the case. Both sides submit what they call briefs, which is a misnomer. There’s nothing brief about a brief. But they basically submit what we might think of as term papers, research papers, where they set out why their side is entitled to win, why the lower court that they’re appealing from got it wrong, or why, if they won in the lower court, why the lower court got it right.

In some of these cases, the two sides are invited to appear before the nine judge panel of the Supreme Court and argue the case at what we call oral argument. No decisions are announced at oral argument. It may be that decisions are made, perhaps not. But later that week, the nine justices of the Supreme Court sit as a committee and discuss the cases that were argued that week. And they go around the table and each justice casts his or her vote. The voting starts with the Chief Justice, and then goes in order of seniority. So the least senior, the newest member of the court, goes last.

Once everyone has had his or her say, the Chief Justice Counts noses. If he has voted in what is the majority, it’s up to him to decide which justice will be assigned to write the opinion for the court. And I say he because we have not yet had a woman as chief justice. That day will come, but it hasn’t yet.

If the Chief Justice finds himself in the minority, then it becomes the prerogative of the senior judge on the majority to assign the task of writing the majority opinion. Any justice can write his or her own draft. Sometimes, those drafts are agreeing with the outcome, but not the reasoning. We would call those concurring opinions, because they concur or agree in the result only.

Sometimes those drafts are dissenting opinions, disagreeing with the decision of the majority. As these draft opinions are circulated among the justices over time, and they’re written and rewritten and edited and tinkered with, sometimes votes change sides. And sometimes what was initially a dissenting opinion, becomes the majority opinion of the court and vice versa.

In fact, that happened in the original Roe vs. Wade case. When the votes were initially cast, Chief Justice Warren Burger found himself in the minority, but he wanted to control the decision of the court as much as he could, so he changed his vote to vote with the majority so that he would have the power, the authority, to assign the Justice who would write the draft for the majority. And of course, as we know, he assigned that task to Justice Harry Blackmun. That’s generally how this works.

And so today, when many of us are filled with outrage at what the court is about to do, and some of us are also outraged at how we got here, and others of us are outraged at whoever it is that leaked this. It helps to recognize that this is not yet the opinion of the court. It does not yet amount to anything. And Roe vs. Wade remains the law of the land. At least, for now.

Who’s to blame for this?

Well, it’s easy to blame Donald Trump, because Donald Trump appointed the most recent three new justices. And according to this draft, all three of them sided with Justice Alito and Justice Thomas in overturning Roe vs. Wade.

We can go back further. We can blame Mitch McConnell, the Senate majority leader who virtually single handedly held up President Obama’s nomination of Merrick Garland to be on the Supreme Court, would not allow the Senate to hold hearings or vote on that nomination, because he said it was too close to the election. And basically, he wanted to deny Obama the opportunity to fill that seat. So instead of Merrick Garland, we got Kavanaugh.

Of course, three years later, when Ruth Bader Ginsburg died shortly before the presidential election, McConnell had a change of heart. And so they rushed through the nomination of our newest justice. And I use that term very lightly.

Who’s to blame? Well, I think it’s perfectly fair to say Ruth Bader Ginsburg is in part to blame. And I loved Ruth Bader Ginsburg. She was a brilliant jurist. But she could have retired early enough in President Obama’s term that he could have easily replaced her. Instead of the replacement we got, which cast the deciding vote in this upcoming case.

Many others, you could say, are to blame – Joe Biden, Hillary Clinton, God knows the list could go on and on and on. My hope, rather than pointing fingers of blame, is that the court will recognize the huge outcry of the public in response to this and recognize that this is not an equally divided country. According to the polling data that I’ve read in news accounts today, well over 60% of the American public are in favor of Roe versus Wade remaining the law of the land. And maybe one of those five justices might decide to change his or her mind, at least as to the language. Perhaps they will join Chief Justice Roberts, who wants to uphold the Mississippi statute that’s challenged in this case, but stop short of overturning Roe vs. Wade.

What does this mean for the future?

Well, gosh, we read in Justice Alito’s draft, his claim that abortion is not a traditional right, privacy is not a traditional right, and therefore, it’s not entitled to the kind of respect as precedent that older cases might have had. Well, if that becomes the view of the court, then we have to look at such recent decisions as gay rights,, interfaith marriage, gay marriage, interracial marriage, contraception. My goodness, we could go all the way back to Miranda. And shortly before Miranda, Brown versus Board of Education, requiring the integration of public schools.

This is a big case. It’s a big deal. And it’s worth spending our time on.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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