“Let us pray this leaked opinion stands,” he added.
7. The draft is a preliminary document.
The document is dated Feb. 10, 2022, and is marked “1st Draft.” Politico and court experts have emphasized that Supreme Court draft opinions routinely undergo revisions prior to the release of an official decision.
The Dobbs case involves a Mississippi law restricting most abortions after 15 weeks and centers on the question of “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” or whether states can ban abortion before a fetus can survive outside the womb.
In Roe v. Wade, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy.
The nine justices on the court heard oral arguments in the Dobbs case on Dec. 1, and met as a group shortly afterward to conduct a preliminary vote and assign the senior justice in the majority to write a draft of the opinion. A final decision is not expected to come for another two months at the end of the court’s term.
8. There is intense speculation about who leaked the document.
For its part, Politico claimed that it received the draft “from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”
SCOTUSblog took a particular interest in the Politico story byline.
“Those interested in who leaked the draft should wonder why Alexander Ward — a national security reporter — shares the byline. The leaker would insist that their identity be incredibly tightly held. Politico would not assign someone who didn’t have to be on the story,” it wrote.
Josh Blackman, a constitutional law professor at the South Texas College of Law Houston writing for Reason, shared some thoughts on “Whodunnit?”
“Even though this document was scanned by Politico, the authorities can probably trace it,” he said, detailing the characteristics of the document.
He shared his “completely uninformed speculation.”
“This document was typeset and printed in a formal fashion,” he said. “This document was also likely not circulated to chambers, but was floating around. And whoever had this document does not yet have access to the more recent drafts, or draft dissents.”
9. The leak places the Supreme Court in an unfamiliar position.
“No draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” Politico senior legal affairs reporter Josh Gerstein and national security reporter Alexander Ward reported. “The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.”
Jonathan Peters, a media law professor at University of Georgia’s Grady College and law school, tweeted a thread explaining the history.
“SCOTUS generally has kept its secrets and has kept confidential its internal processes and deliberations,” he wrote. “But the Court does occasionally leak, and it has leaked before about Roe v. Wade.”
He went on to list several examples. “Its recorded history of leaks dates back to mid-19th century,” he said of the Supreme Court. “Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release.”
10. Pro-life leaders have reacted cautiously, although hopefully, to the leaked document.
The March for Life “will not be providing comment on an official decision of #scotus possible leak until a decision is officially announced,” Jeanne Mancini, the president of the March for Life, responded on Twitter.
Like the legal experts, she also expressed concern about the influence of the purported leak.
“We also believe that given the leak the court should issue a ruling as soon as possible,” she added. “This leak was meant to corrupt the process. It is heartbreaking that some abortion advocates will stoop to any level to intimidate the court no matter what the consequences.”
Steven H. Aden, chief legal officer and general counsel at American United for Life, responded similarly.
“The Supreme Court wishes to return the issue of abortion to the American people, and for that reason this draft opinion language is to be applauded,” he said. “It is outrageous that this draft language was leaked, presumably by pro-abortion staffers within the Court. It is a cynical and naked attempt to pressure justices to alter course in Dobbs and to perpetuate abortion violence. The Court should maintain the moral high ground, stick to the clear and courageous language this draft opinion, and not allow itself to be ruled by the expectations of pro-abortion activists or proxy media allies.”
11. Pro-life legal leaders have lauded the draft opinion.
Carrie Severino, president of the Judicial Crisis Network, called the draft opinion “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,” she wrote. “The opinion concludes it does not.”
“Here the Court finally takes itself out of the business of legislating abortion - a task for which it it lacks both the authority and expertise,” she added. “Instead, that job will rightly be returned to the people and their elected representatives.”
On the leak, she said, “This is an outstanding opinion, but it is also one that we should not have read tonight …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.”
12. Legal experts say the Supreme Court must conduct a full investigation of the leak.
Blackman of South Texas College wrote that if an investigation cannot resolve what happened, Chief Justice John Roberts “must” resign. Impeachment could also be a possilibity, if a justice was involved.