Clerk who worked on Roe’s decision debunks Supreme Court leak

A former Supreme Court Clerk of Justice Harry Blackmun, who worked on the historic majority opinion of the lawyer in Roe V. Wade, strongly condemned the recent leak of a draft decision that could potentially have the case annulled.

Jim Ziglar, now 76, tore up the leak as a “travesty” and “disgrace,” and thinks it likely came from an activist clerk with access to Judge Samuel Alito’s draft opinion.

“Whoever did this…I hope the bastard gets banned for life and nobody hires him,” Ziglar said.

Ziglar, who worked for Blackmun during the historic 1972 run, has had a long and colorful career in the 50 years since the decision.

He worked as a practicing attorney and investment banker, and served as Assistant Secretary of the Interior under President Reagan, Commissioner of Immigration and Naturalization Services under George W. Bush, and United States Senate Sergeant.

Jim Ziglar, now 76, tore up the leak as a “travesty” and “disgrace”.
The Washington Post via Getty Im

Ziglar declined to comment on Alito’s design, but said the original decision in Roe had always made him uncomfortable.

The former clerk focused specifically on Judge Blackmun’s use of the legal doctrine of the “substantive due process,” which Blackmun used to assert the right to privacy that guaranteed a woman’s right to abortion. The theory holds that the Constitution protects certain fundamental rights – such as privacy – even if they are not expressly stated in the founding document.

“It was probably not advisable to use a Substantive Due Process to achieve this result in Roe,” he said. “My opinion of Roe was that I would have decided differently on a different basis.”

Ziglar believes the leak came from an activist clerk who had access to Judge Alito's draft opinion.
Ziglar believes the leak came from an activist clerk who had access to Judge Alito’s draft opinion.
Getty Images

“I’m not a fan of abortion on demand, but I’m also not a fan of banning all abortions,” Ziglar added.

Conservative lawyers have long mocked the substantive process. Former Judge Antonin Scalia — a famous Roe-hater who unsuccessfully fought his entire body to overturn the decision — told CNN in 2012 that the substantive trial “makes no sense.”

“It’s a constitutional stew. It’s completely fabricated judicial activism,” said Mike Davis, former Chief Counsel for Nominations Sen. Chuck Grassley. “Roe V. Wade was a blatantly wrong coup, no matter what you think about abortion.”

An abortion rights protester holds a sign outside the US Supreme Court.
An abortion rights protester holds a sign outside the US Supreme Court.
REUTERS

Ziglar emphasized that he continued to support the general ruling in Roe, noting that he was far from the only one among the defenders who had doubts.

Former Judge Ruth Bader Ginsburg, a staunch advocate of abortion rights, has also said the decision was flawed.

In many public comments, Ginsburg argued that an incremental approach to abortion rights would have been preferred and that the sweeping ruling in Roe ultimately fueled divisions around the issue.

Students and others protest for abortion rights in Union Square.
Students and others protest for abortion rights in Union Square.
REUTERS

“Teaching doctrinal limbs formed too quickly, experience shows, may prove unstable. The most prominent example of recent decades is Roe v. Wade,” she told students at New York University Law School in 1992.

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