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The process is long and difficult. It begins with four Supreme Court justices agreeing to hear a case. Months later, after a series of briefs have been filed, the high court hears oral arguments.
At that point, the justices meet privately and express where they stand on a given case. The chief justice then assigns a member of the majority the task of writing the court’s opinion.
But the process doesn’t end there. The justice authoring the decision prepares a draft, which is circulated among his or her colleagues in the majority for possible changes, including edits that affect the scope and reach of the ruling.
All of this is done in secret, behind closed doors. At least, that is, the way the Supreme Court ordinarily operates. There are, evidently, extraordinarily rare exceptions. NBC News reported overnight:
In what would amount to an unprecedented leak in modern times, Politico on Monday night published what it said was a draft opinion indicating the Supreme Court would overturn the abortion rights enshrined in Roe v. Wade in a pending case later this year. The document, reportedly authored by Justice Samuel Alito and circulated in February, suggests at least five justices side with Mississippi in its case before the court challenging the landmark 1973 abortion ruling.
The Politico report, which is definitely worth your time to read in its entirety, is online here. Alito’s draft ruling, the authenticity of which has not been independently verified by MSNBC or NBC News, is also well worth examining in detail, and Politico published it online here.
All of this comes with some caveats. We don’t know, and may never know, who leaked this or why. We don’t know who else appears likely to join Alito in the majority. Perhaps most importantly, we have no idea the extent to which Alito’s draft may be changed through negotiations with other Republican-appointed justices.
That said, we also now know quite a bit.
We know that Alito was assigned to write for the majority in Dobbs v. Jackson Women’s Health Organization, the Mississippi case over a 15-week abortion ban. We know that Alito’s role leaves little doubt that there are at least five votes to overturn Roe v. Wade.
And we know that Alito’s draft is unsubtle. There’s been ample speculation in recent months about how, exactly, the Republican-appointed justices might overturn Roe, and the conservative justice appears to have answered that question in an emphatic and unexpectedly aggressive way: Roe, according to Alito, was “egregiously wrong from the start.”
What kind of limitations would states face on restricting abortion rights going forward? According to Alito’s draft, none.
At that point, as much of the country probably realizes, it would be up to states to decide individually whether reproductive rights exist within their boundaries. But it’s important to understand that for some congressional Republicans, that won’t be the end of the process.
Rather, it will be the beginning of a new one. The Washington Post also reported yesterday:
Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington. The effort, activists say, is designed to bring a fight that has been playing out largely in the courts and state legislatures to the national political stage — rallying conservatives around the issue in the midterms and pressuring potential 2024 GOP presidential candidates to take a stand.
The Politico and Post reports create striking bookends: Republican-approved justices intend to end abortion rights, and Republican lawmakers on Capitol Hill intend to pursue federal abortion restrictions soon after.
The political/legal/health care earthquake is coming. What we’re feeling now is the preliminary rumbling.