If this is on the level … hoo boy. Only one previous time in modern history has someone leaked a Supreme Court decision ahead of its release before — and certainly not one this explosive. Politico claims it has a draft of a majority opinion in Dobbs written by Justice Samuel Alito that will overturn both Roe and Casey, ending the 50-year construct of abortion as a constitutional right:
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” …
No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.
Perhaps that should have informed Politico’s decision to print this draft. The leak is so singular in Supreme Court history that it should have prompted editorial considerations as to the motives for leaking the memo in the first place. It seems pretty clear that the leak would create a bigger opportunity for activists to conduct pressure campaigns on the justices involved.
It’s at the very least a “scumbag move,” as Mark Hemingway tweeted:
Leaking a draft opinion is a scumbag move designed to create public pressure against the court before the decision is finalized.
A sane media would think twice about whether they should enable this pressure campaign from here on out. But we do not have a sane media. https://t.co/SylxV9S4YA
— Mark Hemingway (@Heminator) May 3, 2022
Gabriel Malor wonders whether this is on the level. Either way, it’s a scumbag move:
SCOTUS has *not* scheduled the next opinion day.
If this is a genuine leaked draft, it is unprecedented. Heads should roll.
Actually, even if it is not a genuine draft, heads should roll.
— Gabriel Malor (@gabrielmalor) May 3, 2022
The problem with this leak — and the reason for it — is that this isn’t necessarily the outcome. David French makes this point, noting (as does Politico in its coverage) that justices can change their minds up to the point of publication, at least theoretically:
1. Cases are not decided until the opinion is issued, so while I want Roe overruled, this draft does not mean the case is over.
2. The leak is inexcusable. We don’t know motive, but Occam’s razor would indicate an effort to pressure the court. Terrible. https://t.co/MlFiZ7yli2
— David French (@DavidAFrench) May 3, 2022
That, however, appears to be the point of the leak. It seems all but certain that the intent was to throw sand in the gears of the Dobbs decision process. To a lesser extent, it might also have been intended to introduce some personal animosity and professional suspicion between the justices on the Supreme Court, especially if this came from a staffer and not one of the justices. In short, it’s an attack on the institution itself.
SCOTUSblog makes the same point:
It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.
— SCOTUSblog (@SCOTUSblog) May 3, 2022
In a sense, this is a great argument for getting rid of Roe. Abortion politics has distorted the federal judiciary and especially the Supreme Court for decades. If there was ever a non-constitutional reason to cheer the return of this issue to legislatures and the states, this final attack on the integrity of the Supreme Court provides it.
If the report is accurate, and again it’s not necessarily the case, then Alito already has a 5-3 coalition to overturn Roe and Casey, with only John Roberts’ position yet unclear. If that’s accurate, the fact that Alito is apparently writing the controlling opinion suggests that Roberts isn’t coming along, or at least objecting enough to write a separate concurrence with reservations. Alternately, Roberts might have just decided to take a pass on taking on the opinion, knowing how much vitriol it will produce. However, I would have guessed that Roberts would have exercised his privilege to write the opinion and therefore massage the outcome to the extent possible.
Otherwise, I suspect that the decision itself will be a nine-day wonder in political terms. Many people have already baked a Roe reversal into the political environment. When Roberts practically dared people to produce a direct challenge to Roe and the court granted cert in Dobbs, abortion-rights activists knew the writing was on the wall. What this will likely do is simply accelerate the outrage and the outrage exhaustion even further ahead of the midterms, which will make this even somewhat less impactful in November. If this dropped a week before the general election, it might have generated enough voter anger on the Left to perhaps shift the election. Instead, the outcome may well be even more ennui and despair for Democrats.