The Leak Of The Draft SCOTUS Opinion Overruling Roe: Answers To Your FAQs
The draft is real and an investigation will be launched, according to Chief Justice Roberts.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at firstname.lastname@example.org, and you can subscribe by clicking on the button below.
Last night, Politico dropped a Supreme Court bombshell. Reporters Josh Gerstein and Alexander Ward published what they described as an initial draft majority opinion in Dobbs v. Jackson Women’s Health Organization, the landmark abortion case now pending before SCOTUS. A challenge to a Mississippi law that prohibits most abortions after 15 weeks of pregnancy, Dobbs squarely raises whether the right to abortion is protected by the Constitution.
The draft opinion by Justice Samuel Alito answers in the negative. It expressly overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), sending the issue of abortion back to the states. The draft runs 98 pages—67 pages of analysis, plus a 31-page appendix of historical state abortion laws—and it was circulated on February 10, according to an internal distribution stamp on its first page.
Since the opinion’s publication, everyone has been talking about it. Here are some answers to frequently asked questions about the leak (as opposed to the substance of the opinion or the issue of abortion, which I will discuss at a later point in time).
Holy crap! The leaking of a draft opinion is kind of a big deal, right?
Yes. According to CNN, the leak of a draft opinion is “a stunning breach of Supreme Court confidentiality and secrecy.” As SCOTUSblog tweeted, “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
There have been decision-related leaks from SCOTUS in the past, as noted in this Politico companion piece and this Twitter thread by media law professor Jonathan Peters. But such leaks are very, very rare. And I can’t think of an occasion when a draft opinion was leaked in its entirety and published for all the world to see. It certainly hasn’t happened in the quarter-century that I have been closely following the Court as a law student, lawyer, and journalist.
Pretty much everyone is treating the opinion as authentic. Conservative politicians and pro-life groups have praised it, liberal politicians and pro-choice groups have condemned it, and protesters descended upon the Supreme Court building last night, with additional protests expected around the country today. [UPDATE (8:59 a.m.): There’s a good collection of politicians’ responses over at The Guardian.] [UPDATE (4:24 p.m.): Actually, many Republican politicians focused more on the breach of Court confidentiality rather than the substance of the opinion, while Democrats did the reverse.]
Is this draft opinion legit? Could it possibly be fake?
The Supreme Court’s public information office has declined to comment, so there has been no official confirmation that this draft is the real deal. But I agree with SCOTUSblog, which tweeted that the document is “almost certainly an authentic draft opinion by J. Alito,” and veteran high-court advocate Neal Katyal, who tweeted that “[t]here are lots of signals the opinion is legit. The length and depth of analysis would be very hard to fake. It says it is written by Alito and definitely sounds like him. It’s 60+ pages long.”
Politico, a respected publication with its credibility at stake, has emphasized the authenticity of the draft. According to the New York Times, Politico’s editor in chief, Matthew Kaminski, and its executive editor, Dafna Linzer, sent an email to their newsroom last night stating that the article, which reports “news of great public interest,” underwent “an extensive review process” prior to publication.
But this is just a draft, right? Could the final opinion of the Court turn out differently?
Yes. Both supporters and opponents of abortion, from Planned Parenthood to Mississippi attorney general Lynn Fitch, who is defending the abortion law at issue in the case, have emphasized that the opinion is not final and we need to wait for the Court’s official ruling.
The draft is labeled a “1st Draft” on its cover page, and we don’t know what any of the other justices think of it. It was apparently circulated back in February, and we don’t know what might have changed between now and then. Per Politico:
Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.
So expect the final opinion to look quite different, as other justices offer their comments and and as the opinion gets revised to respond to any dissents or concurrences. Typographical and other minor errors will also get fixed.1
Is it possible that the outcome of the case might diverge from what’s in this draft opinion, with the Court voting to uphold rather than overrule Roe and Casey?
It’s theoretically possible; the situation remains in flux, and not all justices’ votes have been accounted for. In yet another leak, it appears a source or sources spoke with CNN—specifically, Tierney Sneed, Ariane de Vogue, and Joan Biskupic (who has herself received significant leaks in the past)—about where things stand:
It appears that five justices would be voting to overturn Roe. Chief Justice John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from part of Alito's draft opinion, sources tell CNN, likely with the court's three liberals….
Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women's choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.
But I think a change in outcome is unlikely—and even less likely in the wake of the leak, lest it be suspected that a justice or justices changed their votes as a result of the leak and resulting firestorm. Note also this from Gerstein and Ward of Politico (emphasis added):
A person familiar with the court’s deliberations said that four of the other Republican-appointed justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.
What is the likely motivation of the leaker? Is it possible that the leaker hoped to affect the outcome of Dobbs in some way?
Charlie Savage and Adam Liptak of the New York Times identified a few theories floating around on social media (mainly Twitter):
One theory was that it could have been a clerk for a liberal justice seeking to bring public pressure upon the court before its decision was final.
Another was that one of the conservatives orchestrated putting it out, seeking to soften the impact of the decision by getting Americans used to the idea before it happened—and clouding the importance by raising the distraction of a debate over the propriety of the leak.
Yet another theory was that one of the other four jurists that Justice Alito has thought was with him is wavering, and the leaker wants to force that justice back into the fold by making it clear that it would be inferable that he or she went wobbly at the end.
But this is all nothing more than speculation, of course. [UPDATE (9:07 a.m.): Some have suggested that the leaker might have been motivated by a desire to influence the upcoming primary and midterm elections. As noted by Politico, the leak “instantly jolted Democrats from a bout of political malaise Monday night—and many hope it could change the tide of the midterm elections.”]
I’m a bit skeptical of the theory that the leaker was hoping to influence a justice’s vote, for the reasons given by Professor Josh Blackman on the Volokh Conspiracy:
First, this leak may have come from the chambers of a liberal Justice. Under this theory, the leak was designed to create a backlash, and pressure a conservative justice to defect from Alito's opinion. But this theory makes no sense. If anything, this leak from a liberal chamber will entrench the five-member majority to avoid the appearance that the pressure campaign worked.
Second, this leak may have come from the chambers of a conservative Justice. Under this theory, the leak was designed to prevent a conservative justice from defecting from Alito's opinion. But this theory also makes no sense. If anything, this leak from a conservative chamber would infuriate a swing justice, and push them out.
So given the potential of the strategy to backfire, I don’t think the leak was done to try and get a justice to vote a certain way. I’ve worked with many leakers over the years, and leaking is not always a rational decision; sometimes it’s just a scream into the void or other random action.
And do we have a sense of who might have leaked this draft?
Again, we have nothing more than speculation. Many observers have focused on the 37 law clerks currently at the Court, even if leaking and getting caught would pretty much end a clerk’s legal career, and some have even mentioned specific clerks, which I find premature at this point. The leaker might also be a member of the SCOTUS staff other than a clerk, as suggested by Josh Blackman and Ed Whelan.
Some have wondered whether an actual justice might be the leaker or might have authorized a clerk or other staffer to leak. I find this improbable, no matter how strongly a justice might disagree with the outcome. I believe that all nine current justices have too much respect for the Court as an institution and for the confidentiality of its deliberations to engage in or authorize such a massive leak. And the consequences for a justice of leaking and getting discovered would be catastrophic, with David French and others suggesting impeachment.
Will there be some investigation into the leak?
Commentators have called upon Chief Justice John Roberts to authorize an immediate investigation, and that strikes me as likely. In fact, sources have already told Jan Crawford of CBS News, who has scored her fair share of SCOTUS scoops in the past, that “a full-scale investigation involving the FBI is expected” (although there has been some argument over whether the leak is criminal and, if so, under what theory).
What happens next?
We wait for the official opinion of the Court. Under normal circumstances, we’d expect the opinion in late June or early July, near the end of the Supreme Court’s current Term.
But these are anything but normal circumstances. A number of observers have urged the Court at this point to release its opinion in Dobbs as soon as possible—and I agree. A thorough investigation into the leak, accompanied by prompt release of Dobbs, would be the best response to this supreme mess.
UPDATE (11:44 a.m.): The Supreme Court issued this statement, confirming authenticity of the draft opinion (via the New York Times):
Yesterday, a news organization published a copy of a draft opinion in a pending case. Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.
And Chief Justice John Roberts offered these additional comments (also via the Times):
To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.
We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.
I have directed the Marshal of the Court to launch an investigation into the source of the leak.
So yes, there will be an investigation, conducted by the Marshal rather than the FBI (at least at this point in time).
UPDATE (5/9/2022, 4:20 p.m.): Here’s my speculation as to what actually happened in Leakgate.
UPDATE (5/13/2022, 12:25 a.m.): More speculation, this time in the form of a hypothetical New York Times op-ed written by the leaker, explaining their motives.
Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world, as well as the ability to comment on posts. You can reach me by email at email@example.com with any questions or comments about Original Jurisdiction, and you can share this post or subscribe using the buttons below.