A former Supreme Court clerk to Justice Harry Blackmun who worked on the jurist’s landmark majority opinion in Roe V. Wade has strongly condemned the recent leak of a draft ruling that could overturn the case.
Jim Ziglar, now 76, called the leak a “travesty” and a “shame”, and believes it likely came from an activist clerk with access to Judge Samuel Alito’s draft opinion.
“Whoever did this… I hope that son of a bitch gets disbarred for life and no one hires him,” Ziglar said.
Ziglar, who worked for Blackmun during the landmark 1972 tenure, has had a long and colorful career in the 50 years since the ruling.
He has worked as a lawyer 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 Sergeant-at-Arms of the US Senate.
Ziglar declined to comment on Alito’s draft, but said Roe’s initial decision always left him uneasy.
The former clerk specifically focused on Justice Blackmun’s use of the legal doctrine of substantial due process, which Blackmun used to assert a right to privacy that guaranteed a woman’s right to abortion. The theory holds that the Constitution protects certain fundamental rights – like privacy – even if they are not expressly mentioned in the founding document.
“Using substantial due process to achieve this result in Roe was probably not advised,” he said. “My take on Roe was that I would have decided differently on a different basis.”
“I’m not a fan of abortion on demand, but neither am I a fan of banning all abortions,” Ziglar added.
Conservative jurists have long derided substantive due process. Former judge Antonin Scalia — a famous Roe hater who fought unsuccessfully to overturn the decision — told CNN in 2012 that substantive due process “makes no sense.”
“It’s a constitutional stew. It’s completely made up of judicial activism,” said Mike Davis, former chief counsel for nominations, Sen. Chuck Grassley. “Roe V. Wade was an extremely bad power grab, no matter what you think about abortion.”
Ziglar stressed that he remains supportive of Roe’s overall decision, noting that he was far from alone among his defenders with doubts.
Former judge Ruth Bader Ginsburg, a fierce advocate for abortion rights, also said the decision was wrong.
In numerous public remarks, Ginsburg argued that a phased approach to abortion rights would have been better, and that Roe’s sweeping decision ultimately fueled divisions around the issue.
“Doctrinal members formed too quickly, experience teaches, can be unstable. The most striking example of recent decades is Roe v. Wade,” she told New York University Law School students in 1992.