Supreme Court opinion drafts do not leak. Abortion may be at risk but so is court's sanctity.
The only news that could not be contested Monday night was the breach of Supreme Court secrecy, and it was a huge breach.
►The impact on women and families cannot be overstated. Roe and its progeny, Planned Parenthood v. Casey, have upheld the right to abortion for nearly a half-century. The draft opinion by Justice Samuel Alito would end that, returning the issue to Congress and state legislatures.
►The sanctity of the Supreme Court has been upended by virtue of the leak itself. Someone – A dissenting justice? A law clerk risking his or her lucrative career? A pro-choice staffer? – breached the marble palace’s protocol in unprecedented fashion. That trust will be virtually impossible to rebuild.
►The Biden administration and Democrats in Congress will have an issue to clobber Republicans with in the 2022 midterm elections. Nothing motivates the left more than a threat to abortion rights – not even the ongoing threat to democracy itself.
But – and it’s a big “but” – the high court has not ruled. Justices have been known to switch sides after their initial vote, which follows oral argument, which in this case was held last December. The leak itself could prompt hesitant justices to reconsider such a history-altering decision. After all, that was the point of the leak, wasn’t it?
A huge breach of court secrecy
Before we get ahead of ourselves, in fact, it is possible that Alito is writing a sample ruling overturning Roe, while another conservative justice – Chief Justice John Roberts, perhaps, or Justice Brett Kavanaugh – is penning an alternative that would uphold Mississippi’s ban on abortions after 15 weeks but go no further. The court has nearly two months to issue its decision, so such a dual-track process is conceivable.
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First things first: The only news that could not be contested Monday night was the breach of Supreme Court secrecy, and it was a huge breach. The court has nine justices and four times that many law clerks, plus a few senior staff members likely in on the internal deliberations. Nevertheless, draft opinions simply Do Not Leak – at least not until long after the final rulings have been released, and usually only in the form of dead justices’ papers or best-sellers.
The Politico scoop, therefore, speaks to the sheer magnitude of the case. Fortified by President Donald Trump’s three nominees – Kavanaugh and Justices Neil Gorsuch and Amy Coney Barrett – the court has been thought to be pointed in this direction on abortion and several other high-profile conservative causes, including gun rights and affirmative action. Those issues are on the near horizon.
It’s not at all surprising to see Alito’s name as the forthcoming author, nor is it noteworthy to see Gorsuch or Justice Clarence Thomas in the majority. But the court has yet to convince conservatives that there are six reliable votes, and therein may lie the rub for abortion opponents.
Roberts, for one, is unlikely to support overruling a 49-year-old precedent. His main interest is preserving the court’s reputation, and if his colleagues want to show that the law changes with each presidential appointment, you can count him out.
He is an incrementalist, seeking only to decide what needs to be decided and no more; here, that would be Mississippi’s law, not the future of a 1973 Supreme Court precedent.
But Roberts now has other issues to worry about – the court’s crumbling reputation that it can stay above the fray of politics, as well as its internal ethics and protocols. The leak of a draft opinion is likely to set justices against each other just as the recently confirmed Judge Ketanji Brown Jackson is set to replace Justice Stephen Breyer this summer. It’s not clear whether the chief justice can tamp down the controversy or repair the court’s reputation.
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Barrett, mother of seven, is known to oppose abortion personally, but her time on the court has been short, and she has veered to both conservative and moderate shores.
That leaves Kavanaugh, who said during his tumultuous confirmation hearings in 2018 that he considered Roe v. Wade to be “precedent on precedent,” based on the 1992 Casey decision that upheld it. The statement helped persuade Republican Sen. Susan Collins of Maine to support his 50-48 confirmation.
Even if real, Alito draft isn't the end
Let’s presume Politico nailed it: The Alito draft opinion is real, and it has five votes. That does not mean another draft isn’t circulating or might still, with Roberts, Kavanaugh and possibly Barrett siding with Mississippi’s ban but refusing to overrule Roe – at least for now.
The flip side is more troubling: Roe is overruled, proving virtually everything the left has said and written about the 6-3 conservative court to be true. That’s unfortunate for the law, but politically, we won’t have heard the end of it.
As Kavanaugh angrily intoned during his confirmation hearings: “What goes around comes around.”
Richard Wolf reported on the Supreme Court, the White House and Congress during a 45-year career in journalism. Follow him on Twitter: @richardjwolf