The Supreme Court Leak on Roe v. Wade

Justice Alito’s careful draft opinion finally grasps the Constitutional nettle on abortion.

On May 3, police officers stand outside the Supreme Court as demonstrators protest after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision.

Photo: ELIZABETH FRANTZ/REUTERS

The leak of a draft majority opinion from the Supreme Court that would overturn Roe v. Wade is an unprecedented breach of trust, and one that must be assumed was done with malice aforethought. The Court’s response should be to go about its business as usual and not be intimidated.

The question to ask in a leak case is always, cui bono? Who benefits? The Court confirmed Tuesday that the leaked draft by Justice Samuel Alito is real, so we doubt the leak came from the five Justices or their clerks in the apparent majority. What would they have to gain?

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The leaker is probably someone who opposes the majority view and wants to bring outside pressure to bear on the Court to turn one of the Justices and sustain a constitutional right to abortion. The leak to Politico confirms our editorial speculation last week that five Justices voted after oral argument to overturn Roe. But as we reported, the pressure is intense to get one of them to turn, which has happened before.

In a classic of the lobbying genre, progressive law professor Noah Feldman devoted a long Bloomberg essay last August to telling Justice Brett Kavanaugh that saving Roe is his best chance to remove the stain of his confirmation fight. Anyone who believes that isn’t paying attention to Sen. Sheldon Whitehouse and the left. The end of April is the customary if unofficial date inside the Court for changing a vote, so the leak shortly after that date suggests the motive is to ramp up the outside pressure.

It is already succeeding, as the reaction from the left and the media has been apocalypse now. Mr. Feldman rushed out his view that the “Supreme Court Is Broken,” a meme to discredit the Court. But the person trying to break the Court is the leaker.

Democratic leaders Nancy Pelosi and Chuck Schumer were out with a press release shortly after the story broke on Monday: “The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history.”

Their cool reason continues: “Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation.”

This fury is intended to intimidate the Justices and, if that doesn’t work, use abortion to change the election subject in November from Democratic policy failures. Look for the return of fevered threats to break the Senate filibuster, pack the Supreme Court, and impeach the Justices.

The best response from the Court would be to ignore the political fallout and focus on the law. Chief Justice John Roberts asked the marshal of the Court to conduct an investigation into the leak, which is appropriate but rarely successful. A statement from all nine Justices deploring the leak would be a useful defense of the Court as an institution, as the liberal Justices know they may eventually be in the majority.

One question is how fast the Court should now move to publish its decision in Dobbs v. Jackson Women’s Health Organization. There’s an argument for getting it out fast to make it a fait accompli. Politico said the Alito draft was circulated in February, so the Justices have had ample time to absorb it and respond. We hate to say this, but some abortion fanatic could decide to commit an act of violence to stop a 5-4 ruling. It’s an awful thought, but we live in fanatical times.

Our guess is that the leak is likely to backfire at the Court. A Justice who switched his or her vote now would be open to ridicule for wilting under pressure. It would also invite more leaks in the future by showing they get results. A pattern of pre-emptive leaks of draft opinions would destroy the Court.

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On the most crucial point—the substance of the law and Constitution—Justice Alito’s opinion is carefully argued and comprehensive. It grapples directly with the constitutional issues that the Court ignored in Roe and dodged in Planned Parenthood v. Casey. It quotes from the many liberal authorities who criticized the Court’s legal invention. The Court “simply asserted the result it reached,” as Yale scholar Alexander Bickel put it.

The opinion deals exhaustively with the issue of when the Court should overturn a precedent, and why it is justified in this case. It also makes clear that Roe is sui generis, and overturning it does not signal a threat to other precedents, such as Griswold on contraception. Expect to hear about a parade of fanciful legal horribles in the coming days.

As we wrote last week, overturning Roe will not be the end of abortion in America. It would merely return the matter to the states, where abortion law was liberalizing in 1973 before the Court usurped that political and moral debate. If it is overturned, some states will restrict or ban abortion rights while others may make it easier.

But this profound moral question will be debated and settled the way it should be in a democracy—by the people.

Wonder Land: The end of Roe would erode the foundations not just of abortion, but of an entire philosophy of American governance born 50 years ago with Lyndon Johnson's "Great Society." Image: Olivier Douliery/AFP via Getty Images

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Appeared in the May 4, 2022, print edition as 'The Supreme Court Leak.'