It’s been a while since the political world received a jolt as dramatic as the one it received a week ago. It was Monday night when Politico released a leaked draft ruling, written by Justice Samuel Alito, in Dobbs v. Jackson Women’s Health Organization. The document was a bold rejection of Roe v. Wade, and if approved by the conservative jurist’s colleagues, it would turn back the clock in the United States by roughly a half-century.
And while it’s difficult to say with confidence how much of Alito’s draft may be changed through negotiations with other Republican-appointed justices, the fact that the conservative was assigned to write for the majority left little doubt that there were at least five votes to overturn Roe.
National tumult soon followed, and with good reason.
The Washington Post had a related report over the weekend, and while it wasn’t quite as dramatic as the leak of the draft decision, it was nevertheless based on internal high court discussions that are supposed to be kept private.
A person close to the most conservative members of the court said [Chief Justice John Roberts] told his fellow jurists in a private conference in early December that he planned to uphold the [Mississippi anti-abortion law at issue in Dobbs] and write an opinion that left Roe and Casey in place for now. But the other conservatives were more interested in an opinion that overturned the precedents, the person said.
The reporting, which has not been independently verified by MSNBC or NBC News, added that as of last week, “the majority of five justices to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter.”
Why does this matter? A few things.
First, if the reporting is accurate, Roberts looked for ways to uphold Mississippi’s abortion ban without overturning Roe, but the other Republican-appointed justices were unpersuaded.
Second, it’s another meaningful leak about the process, from an institution not known for its loose lips.
Third, while there’s been no shortage of intrigue about who was responsible for the Politico leak, there can be no doubt that the leak to the Post came from the right. (NPR’s Nina Totenberg said on ABC News yesterday that the only theory “that makes sense“ is that the original leak to Politico also came from a conservative.)
And finally, the Post’s reporting suggests there are really only two paths forward: (1) The Supreme Court will overturn Roe; or (2) The justices will, if Roberts can peel off another conservative, uphold Mississippi’s 15-week abortion ban without explicitly overturning Roe.
According to the article, the former is more likely than the latter. Watch this space.