(Note to readers: today was supposed to be Part II of my Six Months Out preview of the midterms. In it, I was going to tell you who was going win the Senate. I even had the podcast episode ready to drop at the same time. But apparently some leaker, working in cahoots with Politico, didn’t want you to have that information yet, so they’ve distracted me with the most dramatic Supreme Court development in decades. I’ll push back my Senate preview to tomorrow.)
(Sorry this took so long. I have a job.)
WHOA! For so many reasons, the leaked draft of the majority opinion in Dobbs v. Jackson is the most important Supreme Court story I can remember. Let’s waste no time. In honor of the nine justices who are now eyeballing each other like characters in an Agatha Christie novel, here are nine things to know about this dramatic development.
- March 2018: Mississippi banned abortions at 15 weeks. Jackson Women’s Health Organization sued the state, who was represented by Thomas E. Dobbs, the state health officers.
- Southern Mississippi’s federal district court issued an injunction and struck down the law, citing Roe v. Wade as precedent. Mississippi appealed to the Circuit Court.
- 2019: the Fifth Circuit Court of Appeals upheld the lower court’s ruling.
- 2020: Mississippi appealed to the Supreme Court.
- May, 2021: SCOTUS agreed to hear the case. A big deal. By hearing the case, the Supreme Court seemed open to allowing a 15-week ban in Mississippi and therefore all other states as well. Further, by ruling on an abortion case, it might overturn the Roe v. Wade precedent.
- December 1, 2021: SCOTUS heard oral arguments. (I summarized them.)
Probably by the end of that week, the justices voted on the case. If Chief Justice John Roberts was in the majority, he chose which of the majority-voting justices writes the opinion. Based on what we know, however, he likely wasn’t in the majority. When the Chief Justice is not in the majority, the senior-most justice who voted with the majority gets to choose who will author the opinion. That would have been Justice Clarence Thomas, who could have chosen himself but apparently stepped aside so fellow conservative Justice Samuel Alito could draft the opinion instead.
Keep in mind that this whole time, we didn’t know how the justices voted. We were expecting to hear the decision in June. A rare leaker had other plans, however. It’s Alito’s draft that has been prematurely released for public consumption.
2. In my March prediction, I was fairly certain justices Thomas, Alito, and Brett Kavanaugh would vote to overturn Roe, whereas liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan would vote to protect it. I also felt Chief Justice Roberts would search for a middle ground, perhaps allowing the 15-week ban while preserving abortion rights before 15 weeks. (Roe and then Planned Parenthood v. Casey in 1992 brought the Court to a “viability” line of about 23 weeks.) I wasn’t sure what justices Gorsuch and Barrett would do; their past suggest they were hostile to Roe, but their oral arguments made them appear open to Robert’s middle ground position.
Based on Politico’s reporting, it appears Roberts’s middle-ground attempt has failed. Gorsuch and Barrett sided with Thomas, Alito, and Kavanaugh. Roberts couldn’t get himself to break so dramatically with precedent, so he’ll side with the liberals. The result will be 5-4 in favor of overturning Roe. Indeed, right from Alito’s draft:
“We hold that Roe and Casey must be overruled.”
3. The arguments I noted in March made their way into the draft. At the heart of the majority’s argument is that states, not the Supreme Court, should decide the extent to which they allow abortion. Alito writes, “The Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision.” Therefore, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This line of reasoning rests on the Tenth Amendment, which says that if the Constitution is silent, the states get to decide.
Back in 1973, the reasoning of the Roe majority built upon the decision from Griswold v. Connecticut (1965), which found that the Constitution implies a “right to privacy” through the First, Third, Fourth, Fifth, and Ninth amendments. The fact that privacy and therefore abortion are only “implied” rights has always made them vulnerable to legal challenges.
These challenges have been mounted for years, and they finally found a court receptive to them. Alito blasted the Roe Court’s liberal Constitutional interpretation, saying its “survey of history ranged from the constitutionally irrelevant to the plainly incorrect.” He called them “exceptionally weak” arguments, with impacts that have had “damaging consequences.” These consequences include not only the loss of life, but the ongoing animosity between Americans on opposite sides of the issue.
Alito hit on his trademark originalism as well, again echoing thoughts shared at December’s oral arguments: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. . . Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right.”
Anticipating pushback from the left and women’s rights groups, Alito noted that kicking the issue to the political branches is not the Court banning abortions. Rather, it’s the Court just being silent and letting elected officials make the decision. He reminds us that “Women are not without electoral or political power. . . . [T]he percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” In other words, women and other liberals are welcome to pressure lawmakers to pass legislation on the issue, but the Court will not bail them out if they fail.
4. Although we have Justice Alito’s majority opinion draft, we do not have the dissenting draft. We’ll see who writes it. (My money is on Justice Sotomayor.) We can assume that in addition to defending a woman’s right to choose as properly interpreted by Roe, the dissent will also remind the Court and country of the stare decisis principle — that for the sake of laws’ consistency and Court’s legitimacy, SCOTUS should adhere to precedent unless the precedent was deeply flawed.
Alito anticipated this argument. He wrote that Roe “was egregiously wrong on the day it was decided.” Alito channeled the point made by Kavanaugh at oral arguments when he listed several bad precedents overturned by the Court, among them dumping Plessy v. Ferguson in favor of Brown v. Board.
Alito also wove in Justice Barrett’s thoughts from oral arguments, which noted that circumstances since 1973 “have changed drastically.” For example, Barrett had noted the rise of safe-haven laws allow mothers with newborns to give up their child without consequences.
Barrett did seem worried that overturning Roe could erode other decisions that used right-to-privacy as a fundamental precedent, but Alito wrote into his draft, “We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
By channeling Kavanaugh and Barrett, Alito works to ensure his draft will maintain his five votes. Were his majority opinion written in a way that alienates a justice, he could lose that fragile majority when he presented it to them.
5. And here’s a good time to mention that the decision is not yet official! Until the Court releases the opinion, the decision does not take effect. Between now and its release, a justice could, theoretically, switch positions. That might happen if something about Alito’s language bothers a justice.
Or, perhaps the leak itself throws the process into turmoil. That takes us from the realm of constitutionalism and legality to the realm of politics. Let’s consider this potential turmoil by writing about how conservatives and liberals are reacting to this news.
6. Let’s first go to the reactions from those who are with the majority — American conservatives. They’re certainly celebrating a win that’s decades in the making. It’s a big win for pro-life groups and the conservatives and Republicans that have done their part to vote for and donate to presidents and senators who help shape the bench.
At the same time, conservatives are now worried about the ruling’s lack of officiality. The leak, perhaps, could threaten this win.
To conservative commentators, the bigger story is the leak itself, not the ruling’s implications on abortion in America. I’ve seen some commentators speculate that the purpose of the leak is to enable the radical left to threaten the conservative justices so that one of them changes their mind before the ruling is made official. President Bush’s White House Press Secretary Ari Fleischer called it an “insurrection against the Court.” Indeed, there’s a reason why barricades have been moved in front of the Supreme Court building.
Others have emphasized the forthcoming lack of trust between justices. If there’s a leaker among the nine justices or their clerks, that deters justices from speaking openly moving forward. The camaraderie that was once maintained, even among those with deep political disagreement (see Scalia and Ginsburg), is now in danger. Although that’s a microcosm of what’s happening to our country, the Court, as removed from political motivations, was always supposed to be removed from that kind of turmoil and infighting.
I feel those concerns. Our third branch was created, for good reason, to be protected from the demands of the mob. It’s why they receive their positions by appointment and are given lifetime terms. We do not want courts making decisions based on what’s popular — by what’s demanded by easily inflamed citizens. We have other branches to respond to the people’s wishes. Judges, in contrast, are there to read the Constitution. And if enough people want to amend the Constitution that the courts interpret, there’s an amendment process for that. Yes, it requires a lot of support, but to change constitutions based on the desires of transient and small majorities would be opening up the legal system, and our society, to chaos.
Leaking SCOTUS decisions in an effort to subvert the Court’s authority by pressuring it to change its ruling is akin to the mobocracy our Constitutional framers’ hoped to avert. For the same reason we don’t want a mob storming the Capitol to intimidate Congress into subverting our electoral traditions, we don’t want a mob taking to the Supreme Court or the homes of justices to pressure them in the same way.
The leak, therefore, could very much undermine the legitimacy of the Court. Ironically, the Court’s legitimacy was the liberal justices’ argument in this case; they wanted to uphold stare decisis so that the Court would appear to read the law objectively rather than swinging based on its justices’ political beliefs. Any liberal celebrating the leak contradicts what the liberal justices hope to argue.
7. As for the liberal reaction: well, it’s an 11 out of 10. Women have this strange obsession with a woman’s right to control her own body.
Speaker of the House Nancy Pelosi and Senate Majority Leader Chuck Schumer issued a statement saying this ruling would “inflict the greatest restriction of rights in the past fifty years.” Hoping to drum up support for November, they added, “The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination.”
The president and CEO of Planned Parenthood calls the decision “horrifying and unprecedented.” She also vowed that, “We will continue to fight like hell to protect the right to access safe, legal abortion,” which not only signals the debate isn’t over, but that they might indeed support the kind of pressure we’ll see in the coming weeks.
Will this pressure work? I doubt it. Considering that question can also help us answer another question…
8. Who stands to benefit from the leak? (And who was the leaker!)
I think most people’s instincts are that a clerk for a liberal justice leaked the draft in the hopes that something could be done before the ruling is official. I agree it’s the most likely source of the leak.
At the same time, however, I actually think conservatives benefit from this leak more than liberals do. First and foremost, I think Chief Justice Roberts, obsessed with the Court’s legitimacy, was going to do all he could to soften the ruling between now and its release. Now, however, an institutionalist such as Roberts will want to make sure the ruling is not modified as a result of the leak, as that would set a precedent that a leak and/or the public pressure that comes from a leak could impact a ruling. Roberts, correctly, wants the perception that the Court means what it says and says what it means.
Relatedly, Roberts may want to move up the ruling’s release before the potential public pressure to delay or reverse the ruling reaches a fever pitch. If that occurs, fewer women will have easy access to abortion a month earlier than intended, a total backfire from a hypothetical liberal leaker who’s trying to play the part of hero.
Finally, the fact there was this embarrassing leak distracts from what would have been the biggest story of the year, one on which liberals had the high ground. Roe v. Wade is a popular ruling, with 60 to 70% approval from the American people. Democrats could therefore parlay this ruling into political success. Now, however, the leak divides our attention, allowing the conservative media to produce a counter-narrative.
To be clear, it’s a legitimate counter-narrative. Both are enormous stories. Overturning Roe is gigantic. So is a leak from the Supreme Court. Both deserve our attention. Anyone emphasizing one but not the other reveals their partisanship.
9. Finally, the political implications. Once the ruling is official, about half our states either have trigger laws that ban abortions in many cases or are expected to pass such laws. (Democratic-controlled states will remain unaffected by the ruling.)
State legislatures that ban abortions, unless they carve out important exceptions, do so at their own peril. There is considerable national support for early-term legality in cases of rape, incest, fetal abnormality, and health of the mother. I presume even in many Republican-leaning states there is majority support for such specific carve-outs. One Marist poll found that only 31% of Republicans wanted Roe fully overturned, with another 30% wanting to keep it — just with more restrictions.
To this point, Roe has actually protected Republican lawmakers from taking risky abortion stances against majority opinion. They could instead complain about the “activist Supreme Court” taking the decision out of their hands. Now, however, the Court has handed the issue back to them, and they’ll need to keep an eye on the polls before clarifying exactly how restrictive they want to be.
Meanwhile, many Democrats will want to use the other parts of the federal government to protect abortion while they still have their endangered majority. Of course, even with a majority in both chambers, little can be done on divisive issues without 60 filibuster-proof votes in the Senate. For that reason, Bernie Sanders has renewed calls to end the filibuster so the government can more easily codify abortion rights. (Of course, without the backing of the Court or a Constitutional amendment, a Republican-controlled federal government could just repeal any new law down the road.)
Even though Democrats will fail at such attempts — they can’t even get the senators of their own party to support suspending the filibuster — that doesn’t mean there aren’t other ways Democrats can salvage a win out of this ruling. In fact, this SCOTUS decision might be the political miracle they’ve needed to become more competitive in the upcoming midterms. They can now use abortion to motivate Democrats and independents who want to protect a woman’s right to choose, and they can channel those votes and dollars into critical Senate elections, as senators have the advice and consent power on judges.
The lesson, as always, is that elections matter. This triumph for the conservative movement was made possible by three Trump appointees from his four years in office. (And you better believe he will use it as proof of his political success heading into 2024 against DeSantis and others.) Assuming an even distribution, had Hillary Clinton earned one percent more of the vote, or had Trump won one percent less of the vote, or had half-a-percent of Trump voters sided with Clinton instead, she would have won Pennsylvania, Michigan, and Wisconsin — and the presidency along with them. Three of the five votes to overturn Roe would not be on the bench at all.
So yes, elections matter. With that in mind, soon, if the news cycle permits, I’ll post my column on the fate of the Senate this November.