On Monday, Politico released an alleged leak of a draft of the Supreme Court majority opinion in the case of Dobbs v Mississippi (2022), which involves striking down Roe V. Wade (1973).
Due to the sensitivity surrounding Supreme Court decisions, the leaking of this type of information has never happened in modern history before. This instance of a leaked opinion is driving many to ask, “who leaked it?” and “why?” Some are speculating social-activist-staffers from Justice Sonia Sotomayor’s office are the most likely to have obtained the draft opinion and leaked it.
Readers of the opinion must note what is being read is a draft. Drafts and votes can change, with days left before an official decision is handed down.
The timing of the leak is significant. It has occurred ahead of mid-term elections. When coupled with the democrat’s sinking poll numbers, an argument could be made that a leak of this magnitude could be used to animate an otherwise lethargic Democratic base.
Written By Justice Samuel Alito, the opinion strikes down Roe and all related cases. If this document represents the reality of the court’s final ruling, all of the federal protections of abortion would be removed. The power would then be moved back to governing powers within the states.
In part, the opinion states, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…This is what the Constitution and the rule of law demand.”
The opinion also included, “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
However, if the leak is an indication of future realities of politics in America, it would be a tectonic shift. It appears that Justice Alito understands this full well, noting the Court’s only responsibility “is to exercise ‘judgment’:
“Our sole authority is to exercise ‘judgment’ – which is to say, the authority to judge what the law means and how it should apply to the case at hand….The Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on….We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”