Some, most notably those who are either law nerds or untroubled by the substance, will raise the shock that a draft opinion of the Supreme Court of the United States was leaked to Politico. And it is, without a doubt, shocking. Because it violated the trust of chambers. Because it likely reflects someone’s view that leaking this draft was more important than the sanctity of confidence. Maybe a law clerk. Maybe staff. We may never know who did it, which is worthy of discussion.
But it was done, and now the draft has been made public. This changes everything.
Before, the Republicans were poised to take back Congress. With this leak, that may not happen, as this will outrage moderates, motivate progressives to vote and change the entire dynamic of the midterms. This is the worst nightmare of fevered dreams of the left, and provides demonstrable evidence that the worst fears of a hard right reinvention of America could happen.
While the rationale behind Roe v. Wade has always been suspect, it remains that abortion has been a constitutional right since 1973, for better or worse. While it’s been extremely controversial ever since, an America has developed since then that relies on the holding of the Supreme Court and reliance that a right established will remain established. In the 50 years since the right was held, generations have understood it to be a right.
Perhaps more importantly, the legitimacy of the Least Dangerous Branch, the branch whose only tool is their acceptance by the other two branches and the public as the final word on constitutionality, depends on the public’s acceptance of the Supreme Court’s decisions and faith in the integrity of the Court. This draft burns this to the ground to undo a 50-year-old decision. Regardless of how you feel about abortion as a policy choice, or Roe v. Wade as an opinion, it was a done deal. Undoing an already extant constitutional right is unthinkable.
Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
The opinion was drafted by Justice Sam Alito, of course, and the information provided by Politico is that it has the votes of Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Notably, the three Trump-nominated justices, if this is accurate, are doing exactly as their detractors anticipated they would do. That there would be a rightward swing in the Court was fairly obvious, but that didn’t necessarily mean these justices would be willing to blow the Court up.
It may be, as Politico notes, that this draft will not end up as now written, or even as the majority decision of the Supreme Court. It is, after all, a draft.
Under longstanding court procedures, justices hold preliminary votes on cases shortly after argument and assign a member of the majority to write a draft of the court’s opinion. The draft is often amended in consultation with other justices, and in some cases the justices change their votes altogether, creating the possibility that the current alignment on Dobbs v. Jackson Women’s Health Organization could change.
It’s possible that the justices will change their votes, but that seems very unlikely. They may quibble over language, but there is little doubt they have given great thought to their positions in Dobbs and, once committed to it, will not change.
The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.
If the question is whether it was rooted in this nation’s history and traditions since the founding, then this would be somewhat correct, just as slavery was deeply rooted since the founding. But after a right has been held to exist, and has been exercised for 50 years, and has become a foundational, if controversial, tenet of our national existence, it is very much deeply rooted in our history and traditions. Or more to the point, it is a constitutional right because the Supreme Court said so. If the Court is to be trusted, then it must stand by what it holds and not shift with the whims of new justices to give and take rights.
Assuming this draft ultimately becomes the holding, the legality of abortions will become a state issue. Some states will outlaw it and criminalize it. Other states will protect it. It’s not that abortion will disappear entirely, although for those women who live in states that prohibit abortion, they may well be unable to afford access to it in another state. Those are the women who had a right because the Supreme Court said so, and now don’t, because a different Supreme Court said so.
I expected the Supreme Court to return a modest decision in Dobbs, one that allowed states more latitude to regulate, but upheld the basic right as established in Roe and Casey, not because the Constitution says abortion is a right, not because Roe was a well-reasoned decision, and not because the five justices approve of abortion, but because stare decisis demands it. To do otherwise would wreak havoc in American society. To do otherwise is to confirm the worst fears of a great many Americans who are hardly woke, but are not at all extreme conservatives.
Some predicted this will happen, screaming about how the sky will fall with a shocking certainty. I cautioned to wait and see, and that no one has the ability to see into the future. This was because I did not believe the Supreme Court would be so destructive, so ruinous of its own institutional integrity, so callous in taking away a constitutional right once given, as to reach this decision. And yet, here it is, and I was wrong. Even though it’s only a draft, and despite all the bad things to be said about the leaker, the damage has now been done.
This changes everything. The ramifications of this will ripple through our politics, governance and public psyche in unimaginable ways. This changes everything.