May 3, 2022 - Politics & Policy

Supreme Court leak stuns nation

MSNBC screenshot of Politico Supreme Court article
Screenshot: MSNBC

Everything about last night's leaked draft of a Supreme Court ruling overturning Roe v. Wade is staggering.

Driving the news: Politico posted a story reporting that the court has voted to overturn Roe v. Wade — and published a leaked draft of that majority opinion, written by Samuel Alito.

The sweep of the ruling is staggering:

  • If this is in fact how the court ultimately rules, abortion would immediately become illegal in at least 13 states, and more would almost certainly follow. New restrictions in other red states would make the procedure difficult to actually obtain even in many places where it might technically remain legal.
  • Women in some parts of the country, particularly the South, would have to travel hundreds of miles to reach an abortion clinic. That would disproportionately disadvantage poor women and women of color.
  • Even just a few months ago, there seemed to be a realistic chance the court would significantly constrain the right to an abortion without eliminating it altogether, at least in one fell swoop. But the draft Politico published says that "Roe was egregiously wrong from the start."

The ruling's rhetoric is staggering:

  • This draft — which is not necessarily final, but which is labeled as the opinion of the court — does not adopt any sort of reasonable-people-differ-but-here’s-the-law approach. It is a broadside.

The leak itself is staggering:

  • This is the first time in modern history that a ruling has leaked before the court issued it publicly. 

Our thought bubble: These are the kinds of leaks you see in normal, electoral politics — from campaigns, from Congress and at times from within the executive branch. In those contexts, they're usually an effort by the leaker to either stop something from happening or embarrass the people who made it happen.

  • Remember that shortly after Chief Justice John Roberts voted to uphold Obamacare, the fact that he had changed his vote late in the process leaked quickly after the court announced its ruling. 

The bottom line: The immediate, potentially life-altering implications for millions of women would be enormous. For the court to so thoroughly and unreservedly toss out its own precedents would have history-altering implications for that institution. 

What's next in Roe fight
Laura Ingraham screenshot
Screenshot: Fox News

Nothing is final here. This leak will unleash months of intense public and political pressure on the justices to take a narrower tack.

  • Politico reported that five justices had voted initially to overturn Roe — Justice Sam Alito, who wrote the opinion, and Justices Amy Coney Barrett, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh.
  • CNN's Joan Biskupic quotes sources as saying Chief Justice John Roberts doesn't want to completely overturn Roe v. Wade — meaning he apparently will dissent, likely with the court's three liberals.

Democrats will spend the next several weeks hoping to peel a vote away from that majority or to push the court to adopt a more incremental ruling.

  • That could work, but if five justices are willing to go this far, this fast, right now, then all Democrats can hope for would likely be to delay the inevitable. 

🏛️ New push on filibuster: Democratic candidates across the country are demanding the Senate eliminate the filibuster rule — then use 50 votes (plus Vice President Harris' tie-breaker) to pass a bill that would codify abortion rights into law.

  • Moderate Democrats, including Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have been staunchly opposed to nixing the filibuster. But progressives hope the Roe v. Wade bombshell will turbocharge momentum in the 50-50 Senate.
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