Politico just published what it says is an early draft of a majority opinion in which the Court formally overrules Roe v Wade. The reporting suggests that all the Republican-appointed Justices other than Roberts are supporting the opinion and the decision. Alito is the author of the opinion. It’s not clear whether Roberts may support the decision, will write a concurring opinion or won’t support the decision at all. It’s sobering, shocking to see the words, “We hold that Roe and Casey must be overruled,” which the opinion reportedly contains. And yet, really it’s not surprising at all. This has been an open secret for months. Indeed it was inevitable the moment Amy Coney Barrett joined the Court. Still, seeing it … In a different way what’s more surprising is that a draft opinion leaked. As far as I know that’s totally unprecedented. Certainly I don’t think it’s ever happened in a high profile case. And here we are.
It’s the least important part of this. But to the extent anyone is wondering I don’t think there are any laws against releasing draft opinions from the Supreme Court. It would obviously get you fired and be a career ender. But this isn’t like classified information or anything like that. My bet would be on one of the clerks or perhaps support staff on the Court. I don’t know precisely who has access to these things. But each Justice has a group of clerks and I would assume at least a couple of them for each Justice are working on this case. Certainly there are support staff involved. But I don’t have any sense of how that works, how many people that is. Fundamentally, it doesn’t matter. The decision itself is the thing. Finding out a few days or weeks early doesn’t change any big picture.
Perhaps the biggest and most consequential unknown is the politics, the political ramifications. But I think it’s better to let the decision itself sink in before trying to make sense of the political fallout.