Court Battles

Five takeaways from the leaked Supreme Court draft opinion

The revelation of a draft Supreme Court decision gutting U.S. abortion rights has stunned an entire nation, setting off protests, sending political leaders scrambling, and igniting public debates about both the form and substance of the leaked draft ruling.

Chief Justice John Roberts has confirmed the authenticity of the opinion authored by Justice Samuel Alito and published Monday by Politico in a leak of a Supreme Court document that is unprecedented in recent history. 

The outlet reported that at least four of Alito’s conservative colleagues — Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas — have joined him in forming a majority prepared to overturn the landmark 1973 decision in Roe v. Wade.

If the leaked version becomes law, it would demolish the nationwide protections for reproductive rights that have been in place for nearly 50 years, opening the door for states to completely outlaw abortions.

Here are the main takeaways on the draft opinion.

The ruling could change before it’s published

While the draft that became public this week has been confirmed to be authentic, it is still subject to change until it’s officially published by the Supreme Court.

Until then, justices can freely change sides, write concurrences or dissents, and alter the opinion that prematurely entered the light of day.

As it currently stands, according to Politico, the three liberal justices are preparing one or more dissenting opinions, and it is unclear whether Roberts intends to join them. The news outlet reported that the current 5-3-1 divide has been in place since December.

But it’s unclear whether that will hold until the Supreme Court officially rules. Typically, the court doesn’t release its most high-profile decisions until the very end of its term, usually by the end of June, in part to allow time for the justices to win over their colleagues on divisive rulings.

While the window of time in which the court usually issues such decisions is fast approaching, there’s little in Alito’s opinion that can be taken as final until it’s made official.

Democrats want legislation to enshrine abortion rights

Democrats have dreaded the end of Roe v. Wade as they watched Republicans solidify a conservative majority on the nation’s highest court over the past few decades and then pushed it further to the right during former President Trump’s term in office.

Now that the day when GOP-appointed justices upend the status quo for reproductive rights appears to be on the horizon, Democratic leaders calling for legislation that would codify Roe into law by establishing a federal right to abortions. 

“[If] the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” President Biden said in a statement Tuesday morning. “And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

Senate Majority Leader Charles Schumer (D-N.Y.) on Monday promised to call a vote on such legislation in the near future, calling the publication of the draft opinion a “dark and disturbing morning for America.”

But any bill to enshrine abortion rights into law faces long odds with a slim Democratic majority in the Senate, which has failed to reach 50 votes to eliminate the filibuster, which requires a 60-vote majority to pass legislation.

GOP is calling for leaker to be brought to justice

Meanwhile, Republicans have responded to the groundbreaking news by focusing their attention on the unknown leaker, saying whoever it is has damaged the legitimacy of the Supreme Court.

GOP leaders on Tuesday called for an investigation into the leaker’s identity followed by criminal charges.

“This lawless action should be investigated and punished to the fullest extent possible, the fullest extent possible,” Senate Minority Leader Mitch McConnell (R-Ky.) said during a floor speech.

“If a crime was committed, the Department of Justice must pursue it completely,” he added.

Roberts said Tuesday that he had directed the Supreme Court’s marshal to investigate the “singular and egregious breach” of the court’s trust.

Virtually nothing is known about the leaker’s identity or motive, and it’s unclear whether any crimes were committed in the process of turning over Alito’s opinion to the press.

But Republicans, who largely support rolling back abortion rights, have made clear that they will try to make the leak itself a focus of the ongoing outcry.

Progressives call for action on court and filibuster reform

Progressive judicial advocates and lawmakers are calling for decisive action from the Democratic Party following the opinion’s publication, doubling down on their push to pack the court to nullify the conservative majority and eliminate the filibuster to protect abortion and other rights from being rolled back.

A ruling that overturns Roe would likely add fuel to the court-packing movement, which sees the current conservative majority as illegitimate, unaccountable and a threat to legal rights that are supported by a majority of Americans.

“Abolish the filibuster. Codify Roe. Expand the Supreme Court. Protect abortion rights by any means necessary. We need all of the above. This is an emergency,” Rep. Cori Bush (D-Mo.) said in a tweet on Tuesday.

Rep. Andy Levin (D-Mich.) added in a statement, “Without urgent and sweeping reform, we will never have true freedom and justice in this country. The Senate must abolish the filibuster and pass the Women’s Health Protection Act to codify Roe immediately and we must reform and expand the Supreme Court.”

While Democrats who support packing the court or abolishing the filibuster make up a minority of the party, their calls for reform are likely to grow louder and more urgent if the conservative justices ultimately abolish a right considered fundamental among the liberal base.

Draft raises concern about court’s next targets

The conservative majority’s apparent willingness to overturn a landmark precedent despite popular opposition has also raised concerns among critics about what other rights might be in jeopardy.

In the draft opinion, Alito stressed that abortion is the only issue that the majority is targeting with its reasoning.

He wrote, “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But that is unlikely to soothe critics who see court precedents such as the one legalizing same-sex marriage as equally vulnerable because they establish rights that conservative justices might believe don’t have “any claim to being deeply rooted in history,” as Alito wrote in the abortion opinion.

Some progressives said that overturning Roe would be a preview of what is to come from the conservative majority.

“PSA: if Roe falls, your constitutional right to birth control will also be in jeopardy,” Rep. Barbara Lee (D-Calif.) said on Twitter. “This has never just been about abortion. It’s about controlling & criminalizing our bodies.”

Rep. Alexandria Ocasio-Cortez (D-N.Y.) added, “As we’ve warned, SCOTUS isn’t just coming for abortion – they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights.”

Tags John Roberts Mitch McConnell Samuel Alito

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