Legal Experts Weigh In on Leak of Supreme Court Draft Opinion Overruling Roe v. Wade
The high court could act quickly, experts say, following the unprecedented leak.
WASHINGTON — All eyes are on the Supreme Court this week, following the unprecedented leak of a draft opinion overturning the 1973 Roe v. Wade decision that legalized abortion.
Late Monday evening, Politico published the leaked opinion, written by Supreme Court Justice Samuel Alito and marked as a “first draft,” in the Dobbs v. Jackson Women’s Health case, in which he concluded, “we hold that Roe and Casey must be overruled,” saying that Roe “was egregiously wrong from the start.” (In its 1992 Planned Parenthood v. Casey decision, the court declined to overrule Roe and instituted the current “viability” standard that allows laws restricting abortion to be applied only after the unborn baby is able to live outside of the womb.)
Chief Justice John Roberts confirmed Tuesday that the document was authentic, but added that “it does not represent a decision by the Court or the final position by any member on the issues in the case.”
He announced that an investigation as to the source of the leak is underway and stated that “to the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.”
Legal experts told the Register Tuesday that the leak was an egregious and unprecedented breach of trust and could even result in the Supreme Court announcing the decision more quickly than planned. Prior to the leak, the Dobbs decision was expected in June, as such high-profile decisions generally are released at the end of the court’s annual term.
The Leak and Investigation
Carrie Severino, president of the Judicial Crisis Network and a former law clerk of Justice Clarence Thomas, told the Register that “the leak itself is just jaw-dropping because it is unheard of for a full draft opinion like this to be leaked.” She said the leak shows “the depths to which people on the left will go to try to intimidate and bully the justices of the Supreme Court.” Referencing praise for the leaker from left-leaning groups, Severino said that “everyone’s assuming this is coming from a liberal clerk on the court who somehow was hoping that this would maybe imperil the outcome of the decision, and that type of attempt to influence the court is just beyond the pale.”
Immediately following the news, Brian Fallon, executive director of Demand Justice, a group that pushes for liberal judicial nominees to be appointed to the U.S. court system, tweeted, “SCOTUS leaks are good. Elite lawyers on both the left and right treating the Court as precious all these years have just been giving cover to an institution that is wholly unaccountable. Rip the veil off.”
Josh Blackman, a constitutional law professor at South Texas College of Law Houston, told the Register that he believed there are a few possibilities regarding who leaked the draft opinion. “One possibility is this came from a conservative justice or a conservative clerk who’s trying to make sure that the five-member majority holds up, but that doesn’t make sense because this leak would probably push a swing vote away,” he said. Another possibility, he said, is that this “came from a liberal justice or a liberal clerk trying to put pressure on the court to not overrule Roe, but again, this makes no sense because this decision would create such a political backlash.”
He said it’s also possible that it “came from someone in the building, staff somewhere, not a clerk, not a justice, who came across the opinion and thought it was best to leak it to the press.”
Blackman said he didn’t see how the leak “makes sense for anyone,” as “it only creates chaos.” He added that he was “grateful the chief justice is taking this matter seriously,” and “the investigation must be transparent,” saying that “those who leaked the documents should be publicly identified and face serious consequences.”
“If a law clerk did this, the clerk could be disbarred,” he said. “I think there’s a breach of the canons of ethics. If a justice did this, there might be impeachment proceedings.” He said the person responsible cannot be “in this position of public trust anymore.”
Teresa Collett, professor at the University of St. Thomas School of Law in Minneapolis and director of the school’s Prolife Center, told the Register that the leak is “a criminal act” and said “it is putting the lives of the justices, particularly the justices identified as supporting overruling Roe, in danger.”
Timing of the Dobbs Decision
As for how this might affect the timing of the court’s decision, Severino said that, in her opinion, “the best response now would be to just simply publish the opinion, stop the political maneuvering in that sense and move on with it.” She said that “delaying does further damage to the court as an institution and continues to expose the justices to these threats and intimidation.”
Blackman noted that, usually, “the court issues these big cases at the end of June, but we’re now in a weird moment where every day that passes is another day where the politics get uglier and uglier. I think the Supreme Court might actually issue a short decision resolving this case, overruling Roe, and saying we’ll release opinions later.”
Collett said that, at this point in time, “the court needs to issue its opinion this week, preferably today, and the filing of dissents and concurrences can take place on another date.” She added that that’s “not unusual; it has been done before when there is a matter of particular urgency. They have a procedure for it, and they ought to use it.”
Regarding how the leak might affect the justices, Severino said, at this point, “this type of leak, in particular, is likely to only strengthen the resolve of the justices in the majority, because which one of them would want to be on record as having changed their opinion based on this type of bullying? I think, if anything, they’re going to be so incensed by it, it makes them more determined.”
Politico reported that “a person familiar with the court’s deliberations said that four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that lineup remains unchanged as of this week.”
Praise for the Draft Opinion
Severino said the draft opinion was “outstanding” and “pointed out so many of the weaknesses of Roe.” She said Alito noted “the fact that Casey never actually analyzed in its decision of whether to uphold Roe, whether Roe was the right outcome,” adding that he “systematically examines ‘Is there actually any constitutional basis for this?’”
She said Alito also pointed out that “Roe doesn’t even commit to what text it’s implying a right to abortion from; it is the weakest possible opinion you could imagine.”
“The Constitution makes no reference to abortion,” Alito wrote, “and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
Severino said that while some abortion supporters will react to the overturning of precedent with outrage, Alito included a page-long footnote that “catalogues decisions that the Supreme Court had overturned.” In the text of the opinion itself, Alito noted that “some of our most important constitutional decisions have overruled prior precedent,” including the famous 1954 Brown v. Board of Education ruling that overturned the separate-but-equal rule for white and Black Americans set forward by the court’s 1896 Plessy v. Ferguson decision.
Blackman agreed the draft opinion was “well-crafted” and “dissects every argument in favor of Roe and destroys the argument. It takes it apart piece by piece. There’s no stone left unturned. People agree or disagree with the opinion, but, as a legal matter, [Alito] explains Roe had no basis in law and that there’s no legal justification to keep this erroneous precedent.”
Severino called this “a very historic moment for all sorts of reasons” and hoped that “it confirms, at least to most reasonable Americans, that this hyper-politicization of this issue is actually the worst possible thing for the court.” She added that the responses from “the left and liberal members of Congress are political responses,” citing their intensified calls to abandon the Senate filibuster and use it to pack the Supreme Court with liberal jurists or to codify Roe v. Wade.
In a statement Tuesday, President Joe Biden said, that “if the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
Sen. Bernie Sanders, I-Vt., said following the news Tuesday that “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. If there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”
Regarding the political implications of the leak, Collett said that “they are going to try to use this opinion to minimize any losses in the midterm elections to Congress, and that will become a major issue in the congressional races and the Senate races.” She also anticipated that members of the House will once again push the Women’s Health Protection Act, a bill which would outlaw virtually any state restriction on abortion.
Currently, there appears little likelihood that the law could pass the Senate. Democrats lack the votes to break the Senate filibuster because both West Virginia Democratic Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema have indicated they will not support such a move. Additionally, Manchin, who is Catholic, voted against allowing the legislation to move forward in the Senate when the Women’s Health Protection Act was introduced there earlier this year.
And Collett noted that if the law was somehow passed, there are arguments that “Congress simply does not have the power to enact such law, and even if they managed to pass a version of such a bill, they can only anticipate extended litigation throughout the country on it.”