One of the court's most sacred customs has now been shattered
On Monday, the Supreme Court issued a fairly important ruling on the First Amendment in the case of Shurtleff v. City of Boston. But the bigger news was the opinion they didn’t issue: the leaked draft of what may be the ruling in Dobbs v. Jackson Women’s Health Organization, an abortion case that has the potential to overturn Roe v. Wade and Planned Parenthood v. Casey, the cornerstones of American abortion law.
If this draft by Justice Samuel Alito has a majority of justices supporting it, then it appears that Dobbs will do exactly that.
Like what you’re reading? Get the free UnHerd daily email
Already registered? Sign in
Politico, which first published the document, says that it ‘received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.’ The following day, Chief Justice John Roberts confirmed that it was genuine, while noting that ‘it does not represent a decision by the Court, or the final position of any member on the issues in the case.’
Much can change between a first draft and a published opinion. Drafts are circulated among the justices for this exact purpose, so that all who join in the majority might have a chance to suggest changes to improve the final product. This draft represents what Alito was thinking in February, and it may reflect the opinion of other justices, but it is not exactly what the court will issue when the time comes.
And indeed, the court may not even rule this way. Supreme Court deliberations are usually kept behind closed doors, but historians of the court know of several occasions where there was initially a majority for one ruling, but one or more justices changed their minds, with the final ruling ending up to be the opposite result.
In Casey, Chief Justice William Rehnquist initially had a five-justice majority to uphold Pennsylvania’s abortion restrictions but lost it when Justice Anthony Kennedy changed his mind and joined the dissenters to author what became the opinion of the court. In NFIB v. Sebelius — the Obamacare case — the same situation is said to have prevailed, with Roberts switching sides after the initial conference vote in order to uphold the law.
What is more certain is the impact of this leak on the court and its entire method of operation. There have been leaks before. President-elect James Buchanan knew about the Dred Scott decision before it was issued, and even tried to influence the result. A memo related to the court’s deliberations in Roe got to the Washington Post in 1972, before the actual opinion was released the following year.
But this leak is different. Never before has an entire draft opinion made its way to the public in this way. Left, centre, or Right, the justices, clerks, and staff of the Supreme Court have all for the most part upheld a certain code of conduct, one that holds against exposing the deliberative process that leads to the court’s rulings.
The court is often riven by ideological disagreement, but loyalty to the institution and its rules make cooperation and coexistence possible. Now that one person has chosen to shatter one of the court’s most sacred customs, trust and cooperation among the members becomes more difficult.
That seems like a problem for the court and the court only, but as one of the few remaining institutions in American life that retains a modicum of support from the public at large, its degradation affects the whole nation. Stable institutions follow their own rules and enforce a form of discipline on their members, thus inspiring trust and reliance. When one member of that institution puts his own desires above that of the group in a very public fashion, those bonds of trust are weakened, perhaps permanently.
As to the larger issue of abortion in America, one may find indications of the court’s thinking even in non-stolen documents. In his concurrence in Shurtleff on Monday, Justice Neil Gorsuch noted that Lemon v. Kurtzman, one of the precedents at issue in that case, was handed down “during a ‘bygone era’ when this Court took a more freewheeling approach to interpreting legal texts” and should be overruled.
Lemon was issued in 1971. Roe was handed down in 1973.