Leak of Alito’s draft Roe v Wade opinion threatens American jurisprudence

Attorney David BetrasAmerica was rocked on Monday when Politico obtained and published Supreme Court Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization, the Mississippi case that provides the opportunity for the Court’s conservative majority to overturn Roe v. Wade the 1973 case that created a constitutional right to abortion and Planned Parenthood of Southeastern Pa. v. Casey, which modified but affirmed Roe in 1992.

In his 99-page opinion which was joined by Justices Thomas, Gorsuch, Kavanaugh, and Comey-Barrett, Alito finds that both Roe and Casey were wrongly decided and should be overturned:

We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the peo­ple and their elected representatives.

Millions of people were either enraged by or overjoyed with Alito’s conclusion, but no one should be surprised. This outcome became inevitable the moment Amy Comey-Barrett was confirmed by the Senate in the waning days of the Trump administration—something I alluded to in this space on April 15.

I understand why the media and most Americans are focused on the seismic impact the ruling, if it stands as written, will have on our society. No political issue has been more divisive than abortion since Roe was decided. The Alito opinion will undoubtedly widen that chasm.

But I will argue that the way in which we learned about the decision is important as the decision itself. The apparently politically-motivated leak of a draft opinion—the first in U.S. history—is far from a trivial matter because it further erodes the public’s already waning confidence in and respect for a Court which they believe has become overtly partisan. The growing lack of trust in the Court is dangerous because it weakens both our legal system and our democracy.

Abortion rights supporters and anti-abortion demonstrators rally outside the U.S. Supreme Court on Nov. 1, 2021. | Drew Angerer/Getty Images

Abortion rights supporters and anti-abortion demonstrators rally outside the U.S. Supreme Court on Nov. 1, 2021. | Drew Angerer/Getty Images

In addition, the leak threatens to destroy the reliance on confidentiality that has fueled the Court’s deliberative process for 232 years. Draft opinions like Alito’s serve as catalysts for debate and discussion and the evolution of legal theories that often motivate justices to switch their votes before a final opinion is issued. That is exactly what happened in 2012 when Chief Justice Roberts reportedly resisted furious lobbying from his conservative colleagues, switched his vote and saved Obamacare. Had the internal debate become public before the case was finally decided the Affordable Care Act would have been erased.

Clay v. U.S., Muhammad Ali’s legal battle to secure conscientious objector (CO) status during the Viet Nam war, provides another illustration of the importance of the Court’s confidential deliberative process. As reported after the fact by Bob Woodward and Scott Armstrong in The Brethern, a 5-3 majority initially ruled against Ali, an outcome that would have resulted in his incarceration. Justice John Harlan was assigned to write the majority opinion.

As his clerks began to prepare an initial draft, they became convinced that Ali was indeed a CO based on their reading of several books about the Black Muslim faith. They convinced Harlan to study the materials and he soon concluded that Ali had been wrongfully convicted. He then circulated a memo apprising the other justices that he intended to change his vote.

Harlan’s switch touched off a heated debate that dragged on for weeks until Justice Potter Steward proposed a compromise that attracted an 8-0 majority in Ali’s favor. The champ, who was a whisker away from jail, was free to resume his boxing career.

Unfortunately, the leak of the Alito draft will now make it impossible for justices to change their position. Chief Justice Roberts, who according to reports favored upholding the Mississippi law but not overturning Roe or Casey, will now most likely become a sixth vote for the Alito opinion.

According to most legal experts, the act of leaking the draft, unless it involved outright theft by someone who was not authorized to possess it, was not a crime, but the impact it will have on the Court is surely criminal.