Last night Politico released a leaked draft of a Supreme Court opinion, authored by Justice Samuel Alito, that would overturn the landmark Roe vs. Wade decision declaring abortion before viability of the fetus to be a legal right.
Supreme Court Chief Justice John Roberts has admitted that the draft is authentic.
The draft is dated February 10, 2022 — nearly three months ago — and is marked “first draft.” While much of the Court’s internal deliberations are kept secret, we do know the general outlines of how their process works:
- The court accepts a case for review.
- Briefs are filed by the parties in the case, and often by “amicus curiae” interests.
- The Court holds oral arguments.
- The nine justices meet in conference, discuss the case, and hold an initial vote on how they intend to decide it.
- One justice from among the majority is assigned to write the majority opinion. That justice (with assistance from staff) pens a first draft (such as Alito’s in this case) and circulates it.
- The other justices provide feedback, and may choose to write their own dissenting or concurring opinions.
- The justices iterate on their drafts for however long it takes — days, weeks, or months — until the drafts are final. Along the way the justices may change their mind on how they choose to vote or adjust their own reasoning.
- The final opinion is released, along with concurring and dissenting opinions.
There is much we don’t know, including exactly what the justices initially chose to vote on. The pending question before the Court is whether to uphold or strike down Mississippi’s law placing severe restrictions on abortions in the state, not whether to overturn Roe vs. Wade. It may be that in conference a majority chose to vote to uphold it, but not all necessarily for the reasons Alito laid out in his first draft. It’s also possible that some justices were fence-sitting: either leaning towards overturning Roe vs Wade or leaning against it (Politico reports that Roberts was not part of the majority vote), and wanted to read Alito’s draft before making a final decision.
We can be confident that over the past three months there has been a fury of drafting concurrences, dissents, and revisions to Alito’s first draft. So we don’t really know the state of things today, and given the backlash to the leak yesterday, it’s unlikely that there will be further leaks before the final opinion is released.
But given the length, the voluminous references, and the contents of the attached exhibit, it’s also clear that Alito has been preparing for years to write this opinion — despite the fact that in his confirmation hearings he claimed that he was not inclined to overturn Roe vs Wade. For the record, Justice Barrett also said she was unlikely to overturn it, and Justices Gorsuch and Kavanaugh both referred to Roe vs. Wade as “settled law.” None of their names are attached to Alito’s first draft, so we don’t have any hard evidence yet about how they are voting in this case.
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