by Kyle Sammin
Tuesday, 3
May 2022
Explainer
21:15

The Roe vs Wade leak may change the Supreme Court forever

One of the court's most sacred customs has now been shattered
by Kyle Sammin
The Supreme Court. Credit: Getty

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.

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.

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Francis MacGabhann
Francis MacGabhann
3 months ago

The leak is indicative of something very wrong with American society as a whole, although I’m sure it’s not just an American thing. It’s quite apparent that the leaker, alarmed that his or her politics was not going to win this one, deliberately leaked the draught in an attempt to to rally the left into physically intimidating the justices into changing the final ruling. Certainly, their personal security is now going to have to be seriously increased.

It’s regrettable that this is how the left operates, although in one sense it’s a good thing because it shows them up for what they are. This is especially the case when you consider the whole Roe saga from its inception, and particularly its much more insidious sister case, Doe v Bolton. The fact that the Roe judgment was wrong was not just because of the millions dead because of it, it was because the justices at the time made a deliberate political, not a legal or constitutional decision. There is no right to abortion in the US constitution, so they made one up out of whole cloth. This is the fatal flaw in the left’s mindset. They always just KNOW what’s best, so there’s no evil in overriding the process, is there? It’s why communist states never had to bother with those pesky elections, or why Soviet mental hospitals were always full of people with “sluggish schizophrenia”. The idea that the process was a thing to be upheld for its own sake simply doesn’t occur. Yes, it was important in the past when those nasty reactionary types held power, but now proper people are on top, it’s no longer necessary. That’s what “inevitable progress” does for us.

Billy Bob
Billy Bob
3 months ago

I think your comment is exceedingly hyperbolic, though I don’t doubt this has been leaked by somebody unhappy with the verdict (which is usually the reason anything is leaked).
A simple answer would be to put it to a nationwide binding referendum. Should women be allowed to access abortion services up to x weeks in their pregnancy? Yes/No.
This would take the whole argument away from unelected judges and put it into the hands of the citizens of the country

Carlos Danger
Carlos Danger
3 months ago
Reply to  Billy Bob

We have never had a national referendum in our history, and there is no process to hold one. That wouldn’t work.
Moreover, abortion law has always been handled by the states, even under Roe v. Wade. Many states (like mine, California) have liberal abortion laws. I checked, and there are several abortion clinics within a half-hour drive of where I live.
Other states (like Mississippi, in the case before the court now) are very restrictive. Mississippi is a large state, and it has only one abortion clinic in the whole state. Even so, doctors have to fly in on rotation from other states to staff it. And that’s under the current law, not the new one now before the supreme court.
The supreme court decision, assuming it holds up, will take the federal government out of it completely and leave the issue up to the states. The way our Constitution works, it’s hard to argue against that. We are a federation of states, states united into a country, but still states.
Abortion is a difficult issue, arousing strong emotions on both sides. Still, we have handled difficult issues before. It’s a shame that we now seem to have forgotten how.

Last edited 3 months ago by Carlos Danger
Billy Bob
Billy Bob
3 months ago
Reply to  Carlos Danger

I suppose there’s nothing stopping people simply catching a bus to the next state and having the procedure done there is there, in which case this ruling changes nothing.

Last edited 3 months ago by Billy Bob
Terry M
Terry M
3 months ago
Reply to  Billy Bob

Precisely. It does add a burden to the woman seeking an abortion, but that is only a large burden in a few places far from more liberal states. I am sure Planned Parenthood or some other group would be glad to establish a fund for such expenses.

Saul D
Saul D
3 months ago
Reply to  Billy Bob

Isn’t that the point of the (possible) ruling? In other words, the new ruling says access to abortion should be decided by legislative votes – at State level, but also possibly via Congress – not by injunction via legal ruling at a Federal level.

Springmellon a
Springmellon a
3 months ago
Reply to  Billy Bob

Why would a national referendum be preferable to the community of each individual state determining the extent of abortion rights through the normal local democratic process?

Last edited 3 months ago by Marcus Leach
Bernard Hill
Bernard Hill
3 months ago
Reply to  Billy Bob

…it’s remains a hot button issue in the US because it’s not been resolved by a vote of the people, (as for example, most recently in Ireland). And because it is only judge made law, Roe v. a Wade has been a catalyst for corrosion in all the US political institutions. A referendum isn’t a mode that’s efficacious there though. A constitutional amendment is probably necessary for a nationwide law. Otherwise it will resolve to state by state legislation. And what’s wrong with that, given the majority support nationally for terminations up to the second trimester, as in the Mississippi law the subject of the Dobbs case.

Billy Bob
Billy Bob
3 months ago
Reply to  Bernard Hill

America does come across as a basket case to be honest. As a first world nation they offer little to no support for mothers (nothing in the way of maternity leave etc) compared to comparable countries, and many states want to force women to have babies they either don’t want or can’t afford. I understand people feel that abortion is wrong and that’s a perfectly legitimate position to hold. However you don’t have to have one and I think it’s inherently selfish to push those beliefs onto others, especially as it has the potential to ruin the life of both the mother and unwanted child

Ian Stewart
Ian Stewart
3 months ago

I’ve found the language of the democrats over this leaked judicial decision quite intriguing – they’re blatantly challenging the authority of the Supreme Court, the same people who condemned blatant challenges about the validity of the presidential election, describing it as a ‘coup’.
Well what do you call undermining the judicial process, other than a ‘coup’?

Lesley van Reenen
Lesley van Reenen
3 months ago

Maybe the leak is a deflection. What happened to the ministry of truth? That is truly scary – far more so than individual states working out when a woman can terminate a pregnancy.

Saul D
Saul D
3 months ago

More lawyers in US public institutions behaving badly for political ends, further eroding public trust in the institutions themselves. The US bar needs to get a grip on the behaviour of lawyers in public service – lawfare as a concept is not acceptable.

Billy Bob
Billy Bob
3 months ago

I still find it bizarre that Americas top court is so openly partisan and politicised, with its make up essentially decided by pot luck of when others fall off their perch.
I generally thought the point of the judiciary was to be free (as much as possible) of political leanings and simply interpret the laws as they were written, with it being the job of elected representatives to write the laws in such a way that it delivers the desired outcomes of the majority of the populace. The US Supreme Court seems to have much more power to set the laws as they wish them to be

Brendan O'Leary
Brendan O'Leary
3 months ago
Reply to  Billy Bob

In a way, it’s good that is openly politicised. High courts in Australia, for example, particularly the state ones, hand down politicised judgements under a mask of impartiality.

Billy Bob
Billy Bob
3 months ago

True I don’t think you can ever remove bias 100%, we’re all human after all. It just seems in the States those judges seem to have a lot more power to set the law rather than simply interpret it.
In this instance why doesn’t the government simply pass a national law guaranteeing a woman’s right to abortion if they believe that it should be the case, or put it to a referendum? It seems strange to put something so personal and with such far reaching consequences in the hands of a few unelected political appointments

Philip Hart
Philip Hart
3 months ago
Reply to  Billy Bob

Indeed, Lord Sumption’s Reith lectures are a recommended listen.

Carlos Danger
Carlos Danger
3 months ago
Reply to  Billy Bob

That’s exactly the point that Samuel Alito makes in his leaked draft opinion. The Roe v. Wade decision has no support in law (the Constitution being the applicable law in this case). The supreme court granted women a right that did not exist.
No one gave the courts in the United States the power to make law rather than interpret it. They took it. Time to take it back.

Billy Bob
Billy Bob
3 months ago
Reply to  Carlos Danger

If that’s the case surely an easy fix would be for the current government that is in favour of the status quo to pass a law as it currently stands, thus rendering this judgement of the court redundant?

J Bryant
J Bryant
3 months ago
Reply to  Billy Bob

That’s a temporary fix because a subsequent administration can potentially repeal or heavily amend the law.
The only permanent way to secure abortion rights is an amendment to the US constitution but that’s very difficult to achieve. If I recall correctly, the amendment has to be proposed by two thirds of both houses of congress and ratified by three quarters of the states. It only happens when the nation as a whole is firmly behind the amendment.

Terry M
Terry M
3 months ago
Reply to  Billy Bob

A law passed by Congress would likely be unconstitutional if Roe is overturned, just as Roe is now judged to be unconstituional. Such a law would be useless except to supply lawyers with full employment.

Carlos Danger
Carlos Danger
3 months ago
Reply to  Billy Bob

In theory, at least, our federal government has limited powers. Any power not expressly given it under the Constitution is reserved to the states. The Tenth Amendment says this explicitly.
As the Constitution nowhere mentions abortion, one might well argue that congress has no power to pass a law giving a right to abortion. On the other hand, conservatives pushed a ban on partial-birth abortion through congress and the supreme court. That tends to weaken if not mute that argument.
In any event, liberals in congress seem content to rage about this in the abstract without trying to do anything concrete about it. That’s probably the best strategic move for them, as it gives them campaign funds and votes. Pregnant women, though, get no help from political posturing.

Ian Stewart
Ian Stewart
3 months ago
Reply to  Billy Bob

They’re probably the best example of judicial activism posing under a democratic ‘process’.
Thankfully our senior judges seem to be less activist, though the ‘fashionable’ judgements related to trans and environmental protest rights emanating from the lower courts indicate that the training of judges ain’t working.

Warren T
Warren T
3 months ago
Reply to  Billy Bob

It’s most certainly not decided by pot luck. The nomination of a Supreme Court justice is one of the most important decisions a President makes while in office. One that can have a lasting impact for generations. And the court is not political in its own right, but the media make it so, especially the left. In fact, the left has used the court to create laws they want, which is completely wrong, but nothing stops the left. Including leaking of draft opinions, apparently.

Billy Bob
Billy Bob
3 months ago
Reply to  Warren T

Of course it’s pot luck. Trump got to nominate 3 judges simply due to being President when those positions became available, so despite only winning 1 election out of the last 4 the Republican Party has managed to stack the top court in their favour for potentially a long time. (This isn’t my taking sides, it would have been equally ridiculous in my eyes if it had been the other way around.
If those 3 had lived a few years longer or fewer those 3 picks would have been Biden’s or Obamas, been much more left leaning and would have no doubt voted to maintain the status quo.

Justin Clark
Justin Clark
3 months ago

This could well be about abortion but somehow I suspect it’s actually another opportunity to divide up America, yet again. Powerful global forces operating here.

Mike Fraser
Mike Fraser
3 months ago

Sacred? Cornerstone? So what was it between 1776 and 1973?

Last edited 3 months ago by Mike Fraser
Greg Kratofil
Greg Kratofil
3 months ago

I am not sure how the right to kill an innocent human being can ever be used to support the humanity of the decision maker. At a minimum we should pray that the decision never have to be made and, if the decision is made, that the decision maker(s) ultimately find peace in eternity.

Russell Hamilton
Russell Hamilton
3 months ago

I’ve always considered Gorsuch an illegitmate member of the Court. The pick was Obama’s but the Republicans in the Senate refused to follow procedure and instead just let time run out until the election was called. Biden should try to appoint an extra justice just to cancel him out.

Carlos Danger
Carlos Danger
3 months ago

The pick was Barack Obama’s but the Senate also has the right to confirm or not. The Republicans followed procedure by rejecting Merrick Garland. One can certainly complain about what the Republicans did but it was perfectly lawful.
Joe Biden is toying with the idea of adding extra justices but I don’t think he’ll do it. That would not go over well in the long run.

Last edited 3 months ago by Carlos Danger
Billy Bob
Billy Bob
3 months ago
Reply to  Carlos Danger

Maybe make the court apolitical as much as is possible would be a more pragmatic solution. Rather than being picked by the President or major parties have them nominated by a body of judges or a similar setup

Russell Hamilton
Russell Hamilton
3 months ago
Reply to  Carlos Danger

This is what Wikipedia says: “President Barack Obama, a Democrat, nominated Garland to serve as an associate justice of the Supreme Court in March 2016 to fill the vacancy created by the death of Antonin Scalia. However, the Republican Senate majority refused to hold a hearing or vote on his nomination. The unprecedented refusal of a Senate majority to consider the nomination was highly controversial. Garland’s nomination lasted 293 days (the longest to date by far)”.

The Republicans cheated, they didn’t follow convention (which as we know all conservatives appreciate so much), thus I consider Gorsuch an illegitimate appointment. He should be cancelled.

Allison Barrows
Allison Barrows
3 months ago

Pffft. Wikipedia is your source? They inconveniently left out Reagan’s nominee, Robert Bork. There’s your “unprecedented” for you.

Russell Hamilton
Russell Hamilton
3 months ago

If you think the Wikipedia article is wrong, please say where it is so. Bork went through the process of hearings etc and the Senate voted to reject him. The process was followed. They then approved Reagan’s next choice. Nothing like the Merrick scandal.

Terry M
Terry M
3 months ago

No, the Republicans did not ‘cheat’, but they did use an unusual, non-traditional – but legal – tactic.
As the article points out, it is this loss of respect for tradition and precedent that is undermining the US legal system. From Obamacare to Amy Coney Barrett’s appointment to the SCOTUS each side ratchets up the disrespect/disregard for decorum and tradition. The Dems are more active in defying tradition, but the Reps do their share.

Russell Hamilton
Russell Hamilton
3 months ago
Reply to  Terry M

How do you fix the problem if you do nothing about it? The way the Republicans tore up the convention for appointing judges now means that either party has a precedent for just refusing to consider any nomination from the other party if they have a Senate majority. Hardly satisfactory. Better for Biden to appoint another judge, if he can, to show that conventions need to be followed, that cheaters can’t just get away with it. Meanwhile, the word ‘illegitimate’ needs to be attached to Gorsuch’s name at every opportunity.

Last edited 3 months ago by Russell Hamilton