Courts

Unprecedented SCOTUS Leak Shows Just How Little Respect The Court Has For, You Know, Precedent

Goodbye reproductive freedom, we hardly knew ye.

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Samuel Alito frown

It’s not a shock that reproductive freedom is over in this country. When Ruth Bader Ginsburg died during the waning months of the Trump administration that was a foregone conclusion. People may have tried to delude themselves into believing otherwise — or at the very least that Roe v. Wade would suffer a death of a thousand cuts with the phrase “We hold that Roe and Casey must be overruled,” never to be written as the opinion of the Court.

They were wrong.

Josh Gerstein and Alexander Ward at Politico have gotten a hold of what they report is a draft of the majority opinion in Dobbs v. Jackson Women’s Health and it is, absolutely, positively the worst case scenario. To start off with — it’s written by Samuel Alito. According to Politico’s reporting, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have voted with Alito, while Stephen Breyer, Sonia Sotomayor, and Elena Kagan are in dissent. How Chief Justice John Roberts will vote is unclear.

UPDATE: According to reporting by CNN, there’s now more information about how Roberts’s vote shakes out:

Chief Justice John Roberts did not want to completely overturn Roe v. Wade ….

Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.

The decision states, “We hold that Roe and Casey must be overruled,” and “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

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So much for all that “respect for precedent” these justices talked about during confirmation.

While most folks knew this was coming, it’s still a gut punch to read it.

But is it real? Yup. By all estimation it is, in fact, the real deal. The major caveat, of course, is that it only purports to be a draft opinion — and the first one, at that. As Gerstein and Ward note, “Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The Court’s holding will not be final until it is published, likely in the next two months.” So, this abomination of a decision is not — yet — the law of the land. But there’s not much solace to be found.

Former Acting Solicitor General and current Hogan Lovells partner Neal Katyal breaks down some of the telltale signs of the opinion’s legitimacy — notably that it *sounds* like it’s written by Alito. Katyal also points out the truly bad news for the eternal optimists desperately trying to convince themselves that something will change before the decision is final: this draft looks like there’s a majority that supports overturning Roe/Casey after oral arguments.

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Has this kind of leak ever happened before? Nope! Not as far as anyone can tell. And SCOTUSblog points out the leak will reverberate on the Court. (Though, to be crystal clear, the actual, you know, content of the draft opinion is a way worse “sin” IMO.)

Why is Sam Alito writing the decision? Obviously, as the senior-most justice in the majority (with the Chief undecided) Clarence Thomas gets to assign the decision, so it’s up to him. But wasn’t the entire philosophy behind rushing Amy Coney Barrett onto the Court that it provided better optics for a woman to write the decision that turned back the clock by about a century on reproductive freedom? Apparently optics no longer matter — this decision is the furthest thing from trying to bring the country under one big tent.

No. It’s an opening salvo in a war. And I know the term “culture wars” gets bandied about all the damn time, but Alito’s draft make it clear there are other targets on the Court’s hit list. Next up? Gay rights. His decision criticizes both Lawrence v. Texas and Obergefell v. Hodges as similarly not “deeply rooted in history.”

There will be much more to say about the draft decision in the days to come, but, unfortunately, none of it will be good.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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