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- Legal experts expressed concern after Politico released what it says is a Supreme Court draft opinion on a pending abortion case.
- One expert told Insider that the leak was “highly disturbing.”
- The Supreme Court is expected to hand down its decision on the case by late June.
Legal experts expressed shock and concern on Monday evening after Politico released what it says is a draft opinion on a major abortion rights case that’s still pending, representing a rare breach of Supreme Court protocol, and a sign that the justices are ready to undo abortion rights.
“The fact that it leaked is, to me, the most surprising thing,” I. Glenn Cohen, a professor at Harvard Law School, told Insider, adding that it’s “very unusual.”
In the draft opinion, reportedly written by Justice Samuel Alito, the court’s majority would overturn Roe v. Wade, the 1973 landmark ruling that granted women the constitutional right to an abortion.
“Roe was egregiously wrong from the start,” Alito writes, according to the 98-page draft opinion shared by Politico.
The unprecedented leak comes as the Supreme Court is expected to release its decision on the case, Dobbs v. Jackson’s Women Health Organization, by late June. It’s the biggest abortion challenge before the nation’s highest court in decades. The court heard arguments on the case in December, and at the time, the conservative justices seemed ready to toss out abortion rights. Still, the release of a draft opinion before the final decision is unheard of in modern times.
“It is highly disturbing that the opinion was improperly leaked in an unprecedented way, presumably by someone at the Court,” Mark Kende, a law professor at Drake University, told Insider.
Traditionally, after the court hears arguments for a case, the justices cast an initial vote, privately. Politico reported that in addition to Alito, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all conservatives — voted in the majority to reject Roe. It’s unclear how Chief Justice John Roberts, also a conservative, voted, per Politico.
Afterward, a justice who voted in the majority is assigned to write a draft opinion. Politico reported that it obtained the draft opinion, allegedly written by Alito, from a person familiar with the court’s proceedings.
Josh Blackman, a professor at the South Texas College of Law, swiftly called on the chief justice to launch an investigation into the leak.
“Roberts has an absolute obligation to conduct a thorough and transparent investigation. And at the end of that investigation, Roberts must publicly identify the persons who are responsible for this leak–that includes Justices and clerks. Heads must roll,” Blackman wrote in a blog post on Monday night.
The leak does not represent the court’s final opinion on the case. The opinion’s language, as well as the justices’ votes, could change. The draft opinion obtained by Politico was authored in February, and such documents are typically circulated among the justices to sway their thinking ahead of the decision.
Insider could not immediately confirm the authenticity of the draft opinion shared by Politico, but legal experts say the language fits Alito’s style, and that it’s likely he would have shared the document with his fellow court members.
“In length, tone, citations, and direction seems very much like an authentic document authored by Justice Alito in February of this year,” Cohen told Insider. “There is every reason to believe it represents the assumption of Justice Alito that he had a majority of Justices in favor of his resolution and he was circulating what would be the opinion of the court.”
Moreover, if Alito did in fact write the draft opinion, it sends a major sign that the Supreme Court is ready to overrule abortion rights, legal experts said.
“Anything can happen at the Supreme Court, but it is plausible that there will be five votes for this outcome and that a version of this opinion becomes the opinion of the court,” Cohen said.
“The opinion’s release is probably very important as a signal about what the Court is thinking. The Court appears to be about to overturn a 49-year-old precedent that determines a woman’s identity,” Kende said.
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