Analysis
Editor’s note: This morning, since this article was originally published, Chief Justice John Roberts confirmed the authenticity of the decision, though it is not necessarily a final ruling. He has asked for a federal investigation into the leak.
WASHINGTON, D.C (LifeSiteNews) — Last night, Politico leaked an alleged copy of a draft opinion for Dobbs v. Jackson, circulated by Supreme Court Justice Samuel Alito, which reverses Roe v. Wade and Casey, two cases which have formed the backbone of abortion jurisprudence.
The leak of the draft is enormous in itself, as opinions are held tightly shut, and the network of Supreme Court of the United States (SCOTUS) clerks, despite holding varying political beliefs and having different agendas, do not leak the content of decisions. Politico reporter Josh Gerstein, who co-wrote the leaked opinion article, wrote a second piece that called leaks from the court “very rare.”
So why would someone leak the draft, presuming it’s real? Or at least why would someone go through the process of writing a fake 98-page draft, complete with footnotes?
Some legal and political observers believe it is to pressure SCOTUS, particularly the squishier center-right justices like Gorsuch or Kavanaugh, to change their votes. Some believe that at a minimum it will interfere with the way SCOTUS operates.
“The leak is inexcusable and threatens the Court’s functioning,” Georgetown University’s Ilya Shapiro tweeted. “The most plausible explanation is that it’s someone on the left engaged in civil disobedience—so yet again it’s those who bemoan the ‘loss of norms’ who break them. Cf. court-packing, attacking legitimacy, etc.”
Judicial Crisis Network’s Carrie Severino, a former clerk for Justice Clarence Thomas, praised the ruling but believes it’s an attempt by leftists to “undermine” the court.
The reported draft opinion is thoughtful, scholarly, and thorough. It does the work that the majority in Roe and Casey refused to do, looking to the Constitution itself to determine whether it includes a right to an abortion. The opinion concludes it does not. /1
— Carrie Severino (@JCNSeverino) May 3, 2022
“This is an outstanding opinion, but it is also one that we should not have read tonight. The forces on the radical Left that seek to undermine the institution of the Court have no limit; they will stop at nothing to get what they demand,” she wrote.
“This leak is just the latest iteration of the Left’s shameful campaign to intimidate and undermine the Court, and it should be seen for exactly what it is.”
Daily Wire editor emeritus and Harvard-trained attorney Ben Shapiro said someone leaked the opinion “to create threat to the life and limb of any justice who signs onto the majority opinion” and should be criminally prosecuted.
The idea that the opinion is meant to rile up leftist activists now to put public pressure on constitutionally weaker justices is a possibility. Or it could be meant to get all the leftist violence and screaming out of the way now so when the opinion comes out, it’s old news.
“The most likely motivation is obviously to pressure the Court and push the legislation in Congress on a federal abortion law before the midterm elections,” George Washington University’s left-leaning Professor Jonathan Turley wrote.
“It will also likely renew the call for court packing.”
Democratic politicians have already doubled down on their call to pass a federal law codifying Roe v. Wade, although a similar attempt failed earlier this year. Perhaps the goal of the leaker, if the opinion is true, is to give liberals the political headwinds they need to get a federal abortion law on the books.
It is a fundamental right for a woman to make her own health decisions. We must protect the right to choose and codify Roe v Wade into law.
— Amy Klobuchar (@amyklobuchar) May 3, 2022
This draft opinion is shocking, devastating and a blatant assault on reproductive rights. Congress must act immediately to codify Roe v. Wade and stand up for gender equality.
— Rep. Ro Khanna (@RepRoKhanna) May 3, 2022
That would allow Democrats to downplay the significance of the opinion while using their support for abortion as a campaign issue.