Pump the Brakes

Let's not get ahead of ourselves with the Supreme Court leak.

The Leak

There are very few things that happen politically that can genuinely shock me, but when I saw the news that the Supreme’s Court opinion on the abortion case had leaked, I was stunned. I was certainly surprised that the Supreme Court’s opinion overturned Roe v. Wade, but I was even more surprised that the full first draft opinion leaked.

First, the Supreme Court simply never leaks. Obviously, there have been some leaks before, but they are so few and happen so rarely that the amount in a decade can be counted on one hand. Compare this to a place like Congress where I’m not sure an hour passes without someone leaking insider information to a reporter.

Second, the magnitude of the leak shocked me. For an institution that never leaks, it is stunning that one of the biggest cases in recent history is the one that got leaked and that the entire drafted opinion was leaked, not merely the results.

Finally, I am stunned, albeit less so, at the actual ruling itself. I am not totally shocked at the ruling considering the conservative legal movement has spent decades building the institutional and intellectual capacity to overturn Roe. However, the conservative legal movement has been disappointed so many times that it is still stunning to see the hard work pay off in such a drastic way.

With all of that said, I am not sure that this is a time for the pro-life community to get out ahead of themselves in celebration.

It’s a Draft

The most important thing to remember right now is that the document that leaked was a draft. This means that what exactly is written can and probably will change from now until the official opinion is released this summer. These can be minor tweaks to clarify or address disagreements or they can include an overhaul of the opinion that leads to a less drastic result than the overturning of Roe.

After the Supreme Court hears a case, they meet in a conference room (just the 9 justices, not even clerks can come in) and discuss the case. At the end of the conference, the justices will say what their opinion is on the case. If the Chief Justice is in the majority, he decides who writes the majority opinion. If the Chief Justice is not in the majority, the most senior justice (one who has been on the court the longest) in the majority decides who writes the opinion. In either case, the justice making the decision can choose him or herself to write the opinion.

An important caveat is that at this point none of the justices are locked into their opinion. They can sign on to the majority opinion with no further comment, they can sign on to the majority opinion in part, they can sign on to the majority opinion but write a completely separate concurrence, or they can completely flip their vote.

This brings me back to the abortion case at the Supreme Court right now: none of the justices are locked into their position. Any number of the justices that originally signed on to overturn Roe could change their vote. This would probably mean that the Mississippi law in question would remain in place, but the Court would not go as far as completely overturning Roe. In this case, Chief Justice Roberts would probably write the majority opinion and it would be an immensely disappointing outcome but not the worst-case scenario.

It may be my pessimistic nature, but this outcome is still a real possibility. Pro-lifers need to keep this in mind before they start to pop the champagne bottles.

If this were to happen, conservatives will be quick to say that it was because the draft was leaked and the Supreme Court felt the pressure. I cannot stress enough that this isn’t necessarily true. I’m not going to claim to be able to read the minds of the conservative justices on the court, but the more narrow ruling to keep the Mississippi law in place without overturning Roe would be entirely consistent with some of the justices’ legal philosophies.

Sarah Isgur, co-host of the legal podcast Advisory Opinions, has explained the makeup of the Supreme Court as 3-3-3, not the typical 6-3. What she means is that instead of thinking of the justices in terms of 6 conservative justices and 3 progressive justices, a more accurate picture is 3 progressive justices (Kagan, Breyer, and Sotomayor), 3 conservatives justices that highly value institutionalism (Roberts, Kavanaugh, and Barrett), and 3 conservative justices that don’t value institutionalism as highly (Thomas, Alito, and Gorsuch). Institutionalism, in this context, refers to the idea that the institutional integrity of the Supreme Court should be a part of a justice’s calculation when deciding a case. In practical terms, this means that they typically choose a more narrow ruling rather than overturning precedent full-stop.

In this abortion case context, this would look like keeping the Mississippi law in place but not overturning Roe v Wade. If the Court’s 3 more institutionalist justices decide to go this route, it would be consistent with their judicial philosophy and not necessarily because of the pressure campaign caused by the leak.

This brings me to my next point: we cannot be sure about the identity of the leaker. When the leak first came out, I immediately jumped to the conclusion that this was a clerk to a liberal justice wanting to pressure the Supreme Court into changing its opinion. I still think that this is the most likely source, but I’m not as positive now, so let me explain.

With the make-up of the court that I laid out above in mind, it is entirely reasonable to think that there are one or two conservative justices that are on the fence about whether to go big and overturn Roe. According to the original leak, the justices that originally signed on to the Alito opinion are Kavanaugh, Thomas, Gorsuch, and Barrett. If the official opinion comes out in a more narrow way and one of these justices (most likely Kavanaugh and/or Barrett) signs on to the narrow opinion and not Alito’s concurrence, then it is obvious they switched. This means that a conservative law clerk could have leaked the opinion to pressure a conservative justice that they know is on the fence about overturning Roe.

Again, I would put my money on it being a leak from a liberal law clerk, but a conservative law clerk leaking it can’t be entirely dismissed.

There is a lot more that can be said, but I will save it for when the official opinion comes out this summer.

God Bless,
Hunter Burnett