The Leaflet breaks down the issues thrown by the unprecedented leak of a draft opinion of U.S. Supreme Court in the most controversial case.
THE U.S. political news website, POLITICO’s exclusive report on the U.S. Supreme Court’s initial draft majority opinion, written by Justice Samuel Alito circulated inside the court – leaked by an insider – has cast a long shadow on American politics and on the U.S. Supreme Court itself.
The draft opinion, as POLITICO reported, is a full-throated, unflinching repudiation of the court’s 1973 decision in Roe versus Wade,which guaranteed federal constitutional protections of abortion rights, and a subsequent 1992 decision –Planned Parenthood versus Casey– that largely maintained the right. According to the report, Justice Alito has written: “Roe was egregiously wrong from the start…We hold that Roe and Casey must be overruled…It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.
The Leaflet puts together information which will be useful to understand the ramifications of this leak from the U.S. Supreme Court for the abortion rights movement in the U.S. and for the American judiciary at this stage.
Why should the draft opinion of judges create so much controversy in the first place? After all, it is not the final verdict.
The POLITICO report acknowledges that deliberations within the nine-judge U.S. Supreme Court on controversial cases have, in the past, been fluid. Currently, the U.S. Supreme Court has eight judges, with the latest appointee, Ketanji Brown Jackson, yet to be sworn-in.
If the draft indeed becomes the law, individual states would be able to decide whether and when abortions would be legal. 25 states, that is, half of all U.S.’s states, are likely to ban abortion, if they are allowed to.
“Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months”, write American journalists Josh Gerstein and Alexander Ward in their report in POLITICO.
The authors of the story admit that they are not clear whether there have been subsequent changes to the draft opinion of the judges. But they also acknowledge that it offers an extraordinary window into the justices’ deliberations in the case.
Since the U.S. Supreme Court currently has a conservative majority, it was expected that they would slice away at abortion rights, right? So, what is the surprise and shock all about?
Exactly. Although there was some expectation that the court would veer around reversing Roe versus Wade, the draft shows, according to POLITICO, that the court is looking to reject Roe’s logic and legal protections. This has shocked many who had expected the court not to abandon its decades-long commitment to that verdict.
The story quotes “a person familiar with the court’s deliberations” to suggest that four of the other Republican Party-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.
The three Democratic Party-appointed justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – will probably contribute to dissenting opinions. How Chief Justice John Roberts will ultimately vote, according to the story, is unclear. Justice Alito’s draft concludes that the Constitution “does not prohibit the citizens of each State from regulating and prohibiting abortion”.
If the draft indeed becomes the law, individual states would be able to decide whether and when abortions would be legal. Some states, however, may continue to permit abortions. According to the Center for Reproductive Rights, a global legal advocacy group that fights abortion restrictions in court, 25 states, that is, half of all U.S.’s states, are likely to ban abortion, if they are allowed to.
What is the case before the U.S. Supreme Court, on which the justices’ initial opinion has been leaked?
The case is Dobbs versus Jackson Women’s Health Organisation, in which the state of Mississippi has asked the justices to eliminate the constitutional right to abortion that was first established by Roe and reaffirmed by Casey. The court is expected to release its decision in Dobbs in the next two months.
In Roe and Casey, the court ruled that the Constitution protects the right to have an abortion before a foetus becomes viable. In Dobbs, the challenge is to the constitutionality of a Mississippi law that (with limited exceptions) bars abortions after the 15th week of pregnancy.
Analysts say that the U.S. Supreme Court has overruled decisions before, but it has never removed an existing, established constitutional right.
Jackson Women’s Health Organisation [JWHO] – the only licensed abortion provider in Mississippi – went to the court to challenge the law’s constitutionality. Both the federal district court and the U.S. Court of Appeals for the 5th Circuit agreed with the JWHO that the Mississippi law prohibits all abortions after 15 weeks except in cases of health emergencies or foetal abnormalities.
Mississippi argued that the state can protect the health of a mother; therefore, laws that restrict pre-viability abortions are valid. It also contended that abortion providers don’t have a legal right to challenge laws that ban or restrict abortions on behalf of their patients.
How is the leak seen by the American intelligentsia?
POLITICO claimed that it decided to publish the draft opinion, after satisfying itself about its authenticity, following an extensive review process. It also expressed its belief that the unprecedented view into the justices’ deliberations is plainly news of great public interest.
Many think that the leak happened from the conservative faction among the eight judges, possibly from a clerk for a conservative justice, who might have been personally concerned about the imminent loss of the constitutional right to abortion. The leak is also seen as a desperate attempt to raise a huge controversy in order to pressurise the majority judges to reconsider their draft opinion.
But secrecy is part of the U.S. Supreme Court’s deliberations among the judges, preceding the pronouncement of a verdict. Therefore, what will be the impact of this leak on the institution?
Ruth Marcus, Deputy editorial page editor at The Washington Postwrote on Tuesday that it is a disaster for the Supreme Court. According to her, “it is one thing for information to dribble out after the fact about switched votes, but something else entirely for a draft judicial work product to make its way into breaking-news alerts…” A culture of pre-emptive leaking, she claims, would destroy the court.
Clearly, the U.S. Supreme Court is entitled to overrule its decisions. Therefore, why should this draft opinion cause so much concern?
Analysts such as Marcus say that the U.S. Supreme Court has overruled decisions before, but it has never removed an existing, established constitutional right. Therefore, if the draft indeed becomes the law, state legislatures will be free to restrict all abortion, in almost all circumstances, they aver.
The leak is also seen as a desperate attempt to raise a huge controversy in order to pressurise the majority judges to reconsider their draft opinion.
Justice Ruth Bader Ginsburg, a staunch supporter of abortion rights, died in September last year, and was replaced by Amy Coney Barrett, whose personal opposition to abortion, was debated at the time of her confirmation hearing in October 2020.
The Chief Justice John G. Roberts Jr. has announced a probe into the source of the leak, besides calling it a betrayal. Is there more to this than meets the eye?
Speculations point out that the editorial published by the Wall Street Journal last week that alleged that the Chief Justice was trying to turn the vote of one of the conservative justices to avoid overturning Roe, was an indication that pressures were afoot to change the draft opinion. The Chief Justice has described this as a singular and egregious breach of trust that is an affront to the court and the community of public servants who work there.