A former Supreme Court clerk, Harry Blackmun, who worked on the landmark majority opinion of the jurist in Roe V. Wade, strongly condemned the recent leak of a draft decision that could potentially overturn the case.
Jim Ziglar, now 76, called the leak a “disgrace” and a “disgrace” and believes it likely came from an activist who had access to Judge Samuel Alito’s draft opinion.
“Whoever did this … I hope the son of a bitch gets banned for life and nobody’s going to hire him,” Ziglar said.
Ziglar, who worked for Blackmun during the historic 1972 tenure, has had a long and colorful career in the 50 years since the decision.
He is a practicing attorney and investment banker, and has served as Assistant Secretary of the Interior under President Reagan, Commissioner of Immigration and Naturalization Services under George W. Bush, and US Senate Sergeant of Arms.
Ziglar declined to give his thoughts on the Alito draft, but said the original decision in Roe always troubled him.
The former clerk focused specifically on Judge Blackmun’s application of the substantive due process doctrine, which Blackmun used to assert a right to privacy that guaranteed a woman’s right to an abortion. The theory is that the constitution protects certain fundamental rights — like privacy — even if they aren’t specifically mentioned in the founding document.
“Using a substantive due process to get that result at Roe was probably not advisable,” he said. “My view on Roe was that on any other basis I would have decided differently.”
“I’m not a fan of on-demand abortions, but I’m also not a fan of banning all abortions,” Ziglar added.
Conservative lawyers have long scoffed at the substantive due process. Former judge Antonin Scalia — a famous Roe hater who unsuccessfully campaigned against the decision — told CNN in 2012 that the substantive due process “makes no sense.”
“It’s a constitutional stew. It’s strictly legal activism,” said Mike Davis, a former nominating chief counsel to Sen. Chuck Grassley. “Roe V. Wade was a monstrously wrong seizure of power, regardless of what you think about abortion.”
Ziglar stressed that he continued to support the general ruling in Roe, noting that he was far from the only defender to have concerns.
Former judge Ruth Bader Ginsburg, a fierce advocate for abortion rights, also said the decision was flawed.
In many public statements, Ginsburg argued that a phased approach to abortion law would have been preferable and that the sweeping ruling in Roe ultimately created divisions on the matter.
“Limbs formed too quickly, experience teaches, may prove unstable. The most prominent example of the last decades is Roe v. Wade,” she told New York University Law School students in 1992.