May Justice Alito's draft opinion overturning Roe v. Wade hold

I don't want to be overly excited, but this ruling would correct bad law and bring the issue of abortion where it belongs to our elected representatives.

Photo by Joshua Woods on Unsplash

I'm late to the party commenting on the bombshell report from Politico about a leaked draft opinion in Dobbs v. Jackson Women's Health Organization written by Justice Samuel Alito in February that would overturn Roe v. Wade and Planned Parenthood v Casey. 

I have some thoughts.

Don't count your chickens before they are hatched.

First, I don't want to get prematurely excited. This is a draft, not the final opinion of the court. 

As I understand the Supreme Court's process, sometime after oral arguments, the justices meet to discuss where everyone is on a particular case, and then draft opinions are circulated among the justices.

Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have signed onto this draft. 

Chief Justice John Roberts would uphold Mississippi's 15-week abortion ban but did not want to go as far as overturning Roe. 

This draft is not the final language, and justices have been known to change their mind. For instance, Justice Anthony Kennedy changed his mind in Casey to uphold Roe.

The leak hurts the credibility of the Supreme Court.

There have been rare leaks from the Supreme Court. For instance, in 1973, the Supreme Court's typesetter leaked the Roe v. Wade decision, not the opinion, to TIME.

This is the first time that a draft opinion has been leaked and reported in the press.

We don't know who leaked the opinion. However, I don't think we can blame the typesetter since the Supreme Court no longer uses a printing press for their opinions. 

I highly doubt that any justice would violate the trust of his or her colleagues. So I don't see that happening. 

Each justice has four clerks working with them, and it is possible that any one of the 36 clerks could be the leaker.

The motivation for a progressive clerk to leak the draft would be to put pressure on the justices in favor of overturning Roe to change their mind. We already see a meltdown on the left and protests as a result. 

The second motivation would be to rally the Democratic base for the midterms. That is less likely as the Supreme Court's decision will be made public in June, giving Democrats plenty of time to fire up their base.

A third motivation would be to spark Congressional Democrats to pass a law codifying Roe v. Wade. Fortunately, there are not enough votes in the Senate to do that even if they deep-sixed the filibuster. Senate Majority Leader Chuck Schumer, D-N.Y., however, committed to trying.

Chuck Schumer @SenSchumer

The Senate will vote on protecting a woman’s right to choose. Americans will see where every single senator stands.

It's possible that a conservative clerk leaked the draft opinion, and the only motivation I can think of would be to shore up the justices in favor of overturning Roe. 

Violating the trust of the justices seems like a piss poor way of doing that, which leads me to believe the most likely culprit is a progressive clerk.

Chief Justice Roberts rightly condemned the leak and ordered an investigation.

It's possible another permanent employee with access leaked the draft. The Politico story indicated an internal source, not an outside hacker.

"To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way," he said in a released statement.

"We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," he said.

He ordered the Marshal of the Court to investigate the leak.

Roe is just bad law.

Regardless of whether you support a woman's ability to get an abortion or not, Roe v. Wade has always been a poorly reasoned decision.