WJI's Daily Reads for May 3, 2022

Milwaukee Journal Sentinel: Almost all abortions will be illegal in Wisconsin if U.S. Supreme Court overturns Roe v. Wade.

If the opinion holds and the 1973 decision is overturned, a 19th century state law would go back into effect that bans Wisconsin doctors from performing abortions except when saving the life of the mother. 

If the state's abortion law went back into effect, doctors could be charged with felonies for performing abortions and face up to six years in prison and $10,000 in fines. Wisconsin lawmakers passed the law in 1849, a year after Wisconsin became a state.

Milwaukee Journal Sentinel: Judge says Cedarburg School District must reopen racial-discrimination investigation.

Slate: Leaked Alito draft shows overturning of Roe v. Wade and possibly more. (Mark Joseph Stern will likely have more to say about this at WJI's May 19 event. Register here.)

It is also remarkably extreme. Alito’s Dobbs opinion does not seek out any middle path. He disparages Roe and its successors as dishonest, illegitimate, and destructive to the court, the country, and the Constitution. He quotes a wide range of anti-abortion activists, scholars, and judges who view abortion as immoral and barbaric; there’s even a footnote that approvingly cites Justice Clarence Thomas’ debunked theory that abortion is a tool of eugenics against Black Americans.

And he disavows the entire line of jurisprudence upon which Roe rests: the existence of “unenumerated rights” that safeguard individual autonomy from state invasion. Alito asserts that any such right must be “deeply rooted” in the nation’s history and tradition, and access to abortion has no such roots.

The obvious problem with this analysis is that the Supreme Court has identified plenty of “unenumerated rights” that lack deep roots in American history. Most recently, the court established the right of same-sex couples to be intimate (2003’s Lawrence v. Texas) and get married (2015’s Obergefell v. Hodges). Alito dismissed both decisions in harsh terms, mocking their “appeals to a broader right to autonomy” as a slippery slope. The “high level of generality” in their reasoning, he wrote, could “license fundamental rights to illicit drug use, prostitution, and the like.” It is difficult to square this opprobrium toward Lawrence and Obergefell with Alito’s later assurance that his decision “should not be understood to cast doubt on precedents that do not concern abortion.” This unreasoned disclaimer is not worth much on the heels of 62 pages shredding dozens of precedents over a half-century.

The Washington Post: Effects of the unprecedented leak of a Supreme Court draft opinion.

Leaks are damaging for the court because the rule of law should speak with a final voice, not a tentative one. A draft opinion is a tentative thing, a work under development. It isn’t the law.

Negotiations about opinions follow an internal logic — and a private one. If this draft can be leaked, anything can be. That changes the game, probably forever. Justices won’t be able to make suggestions or proposals without worrying about them becoming public. The whole way the court reaches decisions is now poised to change.

The National Law Review: Fifth Circuit Court of Appeals upholds President Joe Biden's replacement of general counsel for National Labor Relations Board.

NPR: Special grand jury seated in Fulton County, Georgia, to investigate whether illegal interference with 2020 election occurred.

It's not clear exactly what charges (Fulton County District Attorney Fani) Willis could choose to pursue against (Former President Donald) Trump or anyone else. In a letter she sent to top-ranking state officials last year, she said she was looking into "potential violations of Georgia law prohibiting the solicitation of election fraud, the making of false statements to state and local government bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election's administration."