Editors’ Blog

Last night, Politico Nightly had a somewhat ungenerous read on Democratic efforts to codify Roe. Congress Editor Elana Schor noted that Democrats are resisting efforts to join a bipartisan effort that is backed by pro-choice Senators Collins and Murkowski. That seems odd. Why wouldn’t they add those votes? The Collins and Murkowski option wouldn’t provide as fulsome protections for abortion access. But it would like get more than 50 votes rather than a vote in the high 40s. It makes the Democrats sound more interested in purity than results. So why not do that? Sen Mazie Hirono explains: since getting to 50 votes actually has no practical impact on passing the law, why not vote on a law you can enthusiastically get behind rather than a more watered down one?

That’s a pretty good logic.

But this logic illustrates the broader dead end the Democrats are walking into. These votes are often called “symbolic” votes. But that’s not an accurate description. Votes like these are test votes to frame electoral choices. You either force the opposition to make unpopular votes with the intention of campaigning on those votes in an election or — more directly — you use the votes to frame a clear electoral choice. So you tell voters, this is what is at stake in this election. Elect us and we will do this thing. As I’ve argued, in this case that means something like, give us two more Democratic senators and the House and we will codify Roe on the first day of the new Congress.

Tom Goldstein of SCOTUSBlog published a new leak speculation story earlier this afternoon. And it’s fascinating. First off, he thinks the opinion is most likely to have been leaked by a liberal. So he has a different take than the one I’ve been advancing. But what is so interesting to me is that how he gets there overlaps a lot with my thinking (and, to be clear, that of many others).

A new episode of The Josh Marshall Podcast is live! This week, Josh and Kate discuss the leaked draft majority Supreme Court opinion overturning abortion rights.

You can listen to the new episode of The Josh Marshall Podcast here.

As I wrote below, the rapid-fire follow-up reporting on John Roberts’ position on the Mississippi case, just hours after the Politico exclusive, made me think at the time that the leaked draft opinion wasn’t a one off thing. It seemed part of a larger breakdown of secrecy or on-going leaks tied to the Mississippi abortion case. You don’t come up with details about the Chief Justice’s position and arguments from internal deliberations on one of the biggest cases in decades in an hour and a half if you’re beginning from a cold start. Then this morning I found out about this Wall Street Journal opinion page editorial from April 26th in which they fairly transparently write about current Court deliberations in the Mississippi case, specifically that John Roberts was trying to pull an unnamed conservative Justice back from fully overturning Roe.

We can’t know for a certainty that this wasn’t just uncannily accurate speculation from the WSJ worthies. But this opinion piece didn’t come out right after the oral arguments in the case on December 1st when five conservative Justices appeared entirely ready to overturn Roe and Roberts seemed to be looking for a path to a more limited, though still restrictionist, opinion. That general dynamic was clear then — and probably could have been anticipated given Roberts’ recent history of mild heterodoxy from GOP priorities if not conservative judicial orthodoxies. But why the column in late April? And why the specifics? It certainly reads like the authors had an inside read on on-going deliberations and fears that Roberts might be in the process of sneaking a defeat from the jaws of victory.

Going to write more about this topic this morning after I finish up a meeting. But since writing the piece below I’ve put together new details which make it crystal clear the Alito leak came from the right and that it was part of a pressure campaign and series of leaks that were something of an open secret in the elite conservative legal world.

I guess others clearly had. But I had not seen this April 26th Journal op-ed about the jockeying on the Mississippi abortion case until now. It’s very, very clarifying.

After Politico’s exclusive on Monday night publishing the draft Alito majority opinion, CNN followed rapidly that same evening with very specific details about Roberts’ position on the case, resisting joining the majority opinion and perhaps trying to lure one of the five Justices to a narrower ruling. When that second story came out so quickly I said that it made me think that the breakdown of secrecy on this case went beyond the leak of the draft opinion. Reading the Journal op-ed from last week makes that basically a certainty.

I was very interested to get more details on this question. The parlor game of who leaked the opinion has largely been hashed out as if it had to be one of the clerks. But that’s not necessarily the case. There are support staff who also have access to the opinions. Josh Kovensky spoke to a number of recent clerks to understand just who works at the court, who has what access and who — or rather what class of court employee — would have been in a position to leak the document.

In an effort to sound like the “compassionate” party, the Senate Republicans’ campaign arm is reportedly circulating a messaging memo among members that gives the GOP talking points on how exactly they should publicly celebrate the Supreme Court’s plans to overturn Roe v. Wade.

From TPM Reader JS …

I think you’re right on about the dynamics. To me the critical piece is where you say “codify Roe as of 2021”—so that means letting most of the post Casey laws stand. And then we’re into a problem. Some Democrats are certainly going to want something very maximal and others are going to give us the 50-point plan.

It would be nice to stick to something simple and effective. I think we’ll have an intra-party fight over this, of course. Because people want to believe it’s normal politics time and these fights are just what we need when facing an authoritarian takeover.

I was looking over some Senate races last night and I was reminded that it’s going to be a real challenge for Democrats to expand their Senate majority this fall. They’ll be happy just to hold it. We’re not learning anything new to recognize that Democrats face a very daunting midterm cycle. But I want to address a discussion that evolved over the course of yesterday as Democrats and Democratic officeholders reacted to the news.

Few people were more outspoken than Sen. Elizabeth Warren (D-MA) which is totally in character for her. She showed up at the protest outside the Supreme Court and she showed up on TV. She was in a fighting mood. I saw a lot of people saying, that’s what we need! And I agree. But I think there’s something else Democrats need even more: clarity.