By Michael Warren for RealClearPublicAffairs
On May 2, Politico published a draft majority opinion in Dobbs v. Jackson Women’s Health Organization, A case that is heard by the U.S. Supreme Court would result in a reverse ruling Roe v. Wade – The landmark case which established a federal right to abort.
According to the media, the leak was threatening the rule of the law and American constitutional jurisprudence.
Public scrutiny can expose a draft court opinion. This causes protections to be under threat that protect the writing of well-grounded, faithful decisions. The Supreme Court has been flooded with protests.
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Protests against individual justices are routine. They also seem to be in violation of the law. The draft opinion has been relentlessly attacked by political leaders in both speech and print. Plans to bomb the Supreme Court have been a common theme. Other subtle threats are also being hurled at them.
These cases are a direct reflection of the U.S. Constitution’s separation of power doctrine. We can preserve freedom only if the three branches are maintained.
The Constitution created the three levels of government, namely the legislative (Congress), the executive (president), as well as the judicial (courts). The legislative makes laws; the executive enforces them; the judiciary interprets and applies the law fairly in order to settle disputes.
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James Madison observed that the separation of powers was “a first principle of free government.” He argued, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or selective, may justly be pronounced the very definition of tyranny.”
According to the separation of power, the judiciary is empowered and obligated to reject unconstitutional legislation. As Alexander Hamilton once reflected, “Without this, all the reservations of particular rights or privileges would amount to nothing.” The courts are the palladium of liberty, the rule of law, and the Constitution.
The Constitution is the supreme law in any conflict with a law. The Constitution, which is considered the ultimate law in the country, reflects the sovereign will and power of the people.
Legal decisions made by the judiciary must only be informed by facts, arguments, and law promulgated or enacted by the legislature. To ensure that courts are able to act in a court’s capacity and preserve the rule of laws and separation of power, these constraints are vital.
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It is essential that the courts’ decision-making processes are kept secret from the public until publication of the final opinions. This will ensure justice. The courts must be allowed to investigate, examine, test, assess, debate, and even discuss legal issues.
You must allow them to revise and amend your preliminary decision. As a circuit court judge for more than 19 years, I have often written draft decisions that I have materially revised – sometimes completely changing the outcome of my decisions.
Our system requires that legal decisions are not influenced by any facts or arguments not made in the records, nor by any desire to alter or ignore the law. Judicial decisions should be determined by the law – not by political pressure or pundits. Legal opinions should be based on the evidence and arguments, and cannot be altered by threats or protests.
Judiciary review is not an election. Law that is determined by the mob isn’t law. This is why, regardless of anyone’s particular feelings on the merits of the Dobbs Draft, it’s premature publication is a serious threat to the republic. It must not happen again.
The Hon. Michael Warren, an Oakland County Circuit Court Judge and co-founder Patriot Week, author of “America’s Survival Guide,” and host of the Patriot Lessons: American History & Civics podcast.
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