The recent leak of a draft opinion that signals the U.S. Supreme Court is ready to overturn its decision in Roe v. Wade is unprecedented in the Court’s modern history.
On Monday, Politico reported on a draft opinion it obtained “from a person familiar with the court’s proceedings,” reportedly written by Supreme Court Justice Samuel Alito.
According to the draft, Alito comes to the “inescapable conclusion” that “a right to abortion is not deeply rooted in the Nation’s history and traditions.”
“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” the draft says. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Throughout the last half-century, journalists have speculated on Justices’ decisions ahead of time, and former Supreme Court clerks have provided insight into the deliberation process. However, never in the Court’s modern history has a draft decision been leaked while the case was still pending.
For example, there were reports about the Justices’ internal debates during deliberations on Roe v. Wade in 1972. Additionally, former Chief Justice Warren Burger launched an inquiry into if Supreme Court staff leaked decisions after reports predicting the outcome of two decisions in 1979 were run.
According to Politico:
In 1972, while Roe was under deliberation, an unbylined Washington Post story detailed the justices’ internal wrangling on that subject. The Post story — which appeared days after the justices ordered a second round of arguments in the case — was attributed to anonymous informed sources and did not quote any draft opinions or internal memoranda, but described them in significant detail.
In 1979, ABC News Supreme Court correspondent Tim O’Brien went on air with reports predicting the outcome of two decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the court had breached protocol, and a Government Printing Office employee involved in setting type for the court’s rulings was transferred to a different division. The staffer denied leaking any information.
Even then, no internal documents were released public as with Monday’s release of Alito’s draft.
Many politicians and other pundits have speculated the draft’s leak was meant to intimidate the Justices into changing their decisions in the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization.
“Obviously, one of the leftist judges leaked the Court memo to ignite protests and riots that would intimidate the justices,” Dave Reaboi tweeted. “You will see this leaker be feted in the media.”
Obviously, one of the leftist judges leaked the Court memo to ignite protests and riots that would intimidate the justices. You will see this leaker be feted in the media.
— David Reaboi, Late Republic Nonsense (@davereaboi) May 3, 2022
“The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions & norms remember how they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion,” Sen. Marco Rubio tweeted.
The next time you hear the far left preaching about how they are fighting to preserve our Republic’s institutions & norms remember how they leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion https://t.co/9W6jKCZQQt
— Marco Rubio (@marcorubio) May 3, 2022