Supreme Court Institutional Shock

Although it is a draft opinion and not clearly the majority opinion garnering five votes, the leak of a Supreme Court draft abortion opinion violates the Court's long tradition of deliberative confidentiality and, if leaked by a law clerk, represents a departure from the standards of integrity and professionalism assumed by all clerks that swear fidelity to the institution when they take their positions.

No doubt, if alive today, Justices Ruth Bader Ginsburg and Antonin Scalia, generally on opposite sides in contentious cases yet the closest of friends, would be stunned and disappointed by this attack on the collegiality, civility and integrity of the Court's process.

All opinion drafts -- a tentative majority opinion as well as concurring and dissenting opinion drafts -- circulate among the nine Justices before a decision is formally released by the Court.  Opinion language is changed and edited and votes can shift among the competing drafts.  Current speculation suggests the draft opinion from the Chambers of Justice Samuel Alito has five votes at this point in the process, but the actual state of play is unknown.  Essentially, the draft indicates a view that Roe v. Wade and Planned Parenthood v. Casey, the two leading Supreme Court decisions recognizing an expansive constitutional right to terminate pregnancy before the point of fetal viability, were wrongly decided on the merits and do not deserve reaffirmance based on the doctrine of stare decisis, or the preservation of existing precedent to avoid the disruption of settled legal expectations.

The substantive challenges to the judicial reasoning of Roe v. Wade have persisted since the day it was decided in 1973.  One of the leading voices against the analysis set forth in that decision, one of the Roe dissenters, rejected the majority view because the Constitution does not explicitly recognize a privacy right in which the abortion right was grounded.  He also criticized the Court for usurping the role of legislatures to debate abortion policy thereby compromising the Court's institutional legitimacy.  Who was that critic?  It was Supreme Court Justice Byron White, a Democrat appointed by President John F. Kennedy and the former Justice Department deputy to the President's brother, Attorney General Robert F. Kennedy.  President Biden's Chief of Staff, Ron Klain, served as a law clerk to Justice White 15 years after Roe was decided.

The basic point is that the fundamental legal questions long animating the Court's abortion rights jurisprudence have been debated for decades, and, from a strictly legal perspective, the answers do not fall neatly along partisan lines.  The question is not whether abortion, at any stage, should be allowed.  The legal questions have always been:  where is the right found in the text of the Constitution?  If there is no explicit abortion right, what are the conditions under which the Court can recognize implicit rights in a principled way?  And, absent a clear constitutional origin, who should decide the scope of abortion rights -- elected representatives at the federal and state level or unelected federal judges?

Supreme Court Justice Amy Coney Barrett, without referring to any specific Supreme Court matter, offered a hint that these issues were headed for the spotlight when she delivered a recent speech at the Reagan Library in California.  For controversial decisions coming down this term, she urged people to actually read the upcoming opinions (most people will never do that) and emphasized that the Court's duty was to articulate what existing law requires, regardless of policy outcomes.

Abortion policy activists on both sides of the issue are now camped out at the Supreme Court.  Leading Democrats in Congress are now using the issue to galvanize supporters to back the codification of abortion rights in legislation (including ending the senate filibuster) and drive political momentum heading into the midterm elections.  The Chief Justice has confirmed that the leak is an authentic draft opinion and has asked the U.S. Marshal's Service to investigate the leak.

At this point, we assume the Court will attempt to complete the process of finalizing a decision in the abortion rights case before the end of June, but we wonder if the process could be deemed unreasonably tainted and materially compromised as a consequence of the leak.  How the Chief Justice and the Court deals with this as an administrative matter is not fully predictable.

The case, however, made it on to the Court's docket because at least four Justices wanted to resolve the underlying constitutional issues, perhaps partly motivated by a desire to diminish fidelity to Roe v. Wade  -- and its underlying constitutional analysis --  as a litmus test for the future nomination and confirmation of Supreme Court Justices.  If so, we would assume a majority of the Justices will want this case resolved and issued before the end of the current term.