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.
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