Dobbs Draft Leak: What We Know
There is a lot on the line with this breach of SCOTUS protocol.
On May 2, 2022 at 8:32pm (EST), Politico published an article titled “Supreme Court has voted to overturn abortion rights, draft opinion shows”.1 Somehow, Politico allegedly gained access to a draft of a majority opinion written by Associate Justice Samuel Alito which was allegedly circulated sometime around February 10, 2022.2 In addition, the alleged decision came down to 5-3, with Associate Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett ruling in favor of the State of Mississippi and overturning Roe v. Wade. Associate Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan are allegedly dissenting, and Chief Justice John Roberts is allegedly undecided. In short, if this leak is true and nothing changes, Dobbs v. Jackson will result in Roe v. Wade and Planned Parenthood v. Casey being overturned.
This leak is monumental for two primary reasons: A) the nature of the case and B) the nature of the leak. It cannot be understated how important this moment is on both fronts, and everything will hinge on how the Justices respond. There is a lot on the line with this breach of SCOTUS protocol.
The Nature of the Case
Dobbs v. Jackson was granted a hearing by the Court and limited to one question which the Court would answer regarding the case: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”3 This question therefore addressed the viability standard which was established by the Supreme Court in the 5-4 decision on Planned Parenthood of Southeastern Pennsylvania v. Casey.4 In this case, the Supreme Court established the new standard that it was unconstitutional to impose an undue burden on a woman’s access to an abortion prior to the moment the unborn obtains viability. Therefore, Dobbs v. Jackson by the nature of the case had the potential to either uphold, change, or reverse the so-called viability standard. No matter which way it fell, this alone would cause major shifts in the abortion debate.
Based on the alleged draft opinion, it appears the Supreme Court is also considering overturning Roe v. Wade. It was this case which took the authority to decide the question of abortion away from the States and placed it in the hands of the Supreme Court. By overturning Roe v. Wade, the Supreme Court would thus return the authority to decide this question back to the States. No matter which way it fell, this alone would cause major shifts in the abortion debate. The fact both Planned Parenthood v. Casey and Roe v. Wade have the potential to be overturned is a double-blow to the pro-choice movement, and this is the first reason the case is monumental.
Since Roe v. Wade was decided on January 22, 1973 there have been well over 62 million abortions in the United States.5 6 If the pro-life side is correct, this means 62,000,000+ children have been intentionally killed. We will evaluate whether the pro-life side is correct at a future date. For now, it is enough to know the stakes are high with regard to the nature of this case on both fronts. If the Supreme Court releases the States to decide abortion on their own, then each State will have a major battle on its hands. If the Supreme Court overturns the viability standard, then the States will need to determine a new standard which would stand up to Supreme Court scrutiny in the future. In short, this is monumental.
The Nature of the Leak
The second monumental aspect is the nature of the leak. The Supreme Court never, and I mean never, releases drafts for the public to see.7 The Supreme Court deliberates in secret, away from the public eye and public pressure, in order to reach the most objective and uninfluenced decision they can possibly make. It is part of what makes the Court different than Congress, which debates in public 24/7 over legislation, and the President who engages with the public every day. The Supreme Court is supposed to be a non-legislative, non-executive, purely apolitical and judicial institution which is a bastion of objective prudence and integrity. Whoever leaked this draft has declared all out war on this most basic principle of the Court.
Shannon Bream, (J.D), who currently anchors Fox News @ Night, previously covered the Supreme Court as a Fox News correspondent.8 On Twitter, Bream said the following:
Jonathan Turley, (J.D), claimed that “The leak is the greatest crisis faced by Chief Justice John Roberts and the greatest security breach in the history of the Court.”9 10 Indeed, one cannot underestimate what this means internally and externally for the Supreme Court.
Internally, there have been multiple issues with leaking information about the internal affairs of the Court. These include malicious leaks regarding Ginni Thomas11, outright false claims during “Maskgate”12, and the utterly ridiculous premature announcing of Associate Justice Stephen Breyer’s pending retirement13. It appears there are individuals in the Supreme Court who are interested in stirring the pot at the risk of losing their jobs and damaging the Court’s reputation. Now that a draft opinion has been leaked, Chief Justice John Roberts is preparing to unleash his fury upon whoever is responsible for this grotesque and unacceptable betrayal of honor and respect towards the integrity of the institution.14
There are, in my humble and inexperienced opinion, only two possibilities here. First, someone was overexcited and shared something accidently which they should not have done. However, this is being universally rejected by left and right. Everyone seems to believe the only option is the second option: someone intentionally leaked the draft in order to force pressure or stir chaos because they did not like what the pending decision was going to be.15 16 Such an act is childish, immature, and cowardly. Imagine if you will someone was clerking for the Supreme Court and leaked Brown v. Board of Education for the sole purpose of sowing chaos and building pressure to change the Court’s decision. Such a person would be ridiculed by all parties as a childish fool. It should be no different here. The case itself and its subject matter does not matter. What matters is that someone betrayed the Supreme Court for the sake of trying to get what they want.
It is hard to imagine such an act being done without the blessing of another Justice. Yet this is unlikely, especially if the leak was done by someone connected to the past events which were publicly repudiated by the Justices themselves. Someone has likely betrayed not only the Court in general, but the Justice they clerk for as well. Hopefully when the investigation is over, said person will be disbarred. As one of my law professors once said, “There’s nothing sadder than a disbarred lawyer.”
Just as there is nothing sadder than a disbarred lawyer, there is nothing more treacherous than leaking a draft months in advance. And just as there is nothing more treacherous than leaking a draft months in advance, there is nothing more unjust than intentionally terminating the life of the unborn. May God have mercy on the United States of America, and may God guide the Supreme Court, and may God have mercy on the soul of the person responsible for this leak.
~ Anonymous Writer
Gerstein, Josh and Alexander Ward. “Supreme Court Has Voted to Overturn Abortion Rights, Draft opinion Shows.” Politico, 2 May 2022, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473. Accessed 2 May 2022.
Politico Staff. “Read Justice Alito’s Initial Draft Abortion Opinion Which Would Overturn Roe v. Wade.” Politico, 2 May 2022, https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504. Accessed 3 May 2022.
“19-1392 Dobbs v. Jackson Women’s Health.” Supreme Court of the United States, 17 May 2021, https://www.supremecourt.gov/qp/19-01392qp.pdf. Accesed 3 May 2022.
“Planned Parenthood of Southeastern Pennsylvania v. Casey.” Oyez, https://www.oyez.org/cases/1991/91-744. Accessed 3 May 2022.
Elflein, John. “Number of Legal Abortions in the U.S. 1973-2019.” Statista, 2 Dec. 2021, https://www.statista.com/statistics/185274/number-of-legal-abortions-in-the-us-since-2000/. Accessed 3 May 2022.
O’Bannon, Randall. “62,502,904 Babies Have Been Killed in Abortions Since Roe v. Wade in 1973.” LifeNews.com, 18 Jan. 2021, https://www.lifenews.com/2021/01/18/62502904-babies-have-been-killed-in-abortions-since-roe-v-wade-in-1973/. Accessed 3 May 2022.
Note: According to Jonathan Turley, “The Washington Post did run some leaks the court’s internal deliberations [sic]/ Then there was a premature disclosure of information hours before the formal release of the opinions. A few hours before the release, word got out on the holding of the Court. However, that all pales in comparison to the release of a draft opinion months in advance of the expected release.” (See Footnote 9)
“Shannon Bream.” Fox News, https://www.foxnews.com/person/b/shannon-bream. Accessed 3 May 2022.
Turely, Jonathan. “Leaked Draft Opinion Rocks the Court and Washington.” 3 May 2022, https://jonathanturley.org/2022/05/03/leaked-dobbs-draft-opinion-rocks-the-court-and-washington/. Accessed 3 May 2022.
Turley, Jonathan. “Bio: Jonathan Turley Biographical Information.” https://jonathanturley.org/about/. Accessed 3 May 2022.
Justice, Tristan. “The Attacks on Clarence and Ginni Thomas are Merely Latest in a Decades-Long Smear Campaign.” The Federalist, 30 Mar. 2022, https://thefederalist.com/2022/03/30/the-attacks-on-clarence-and-ginni-thomas-are-merely-latest-in-a-decades-long-smear-campaign/. Accessed 3 May 2022.
Schorr, Isaac. “NPR’s Farcical Triple-Down on ‘Maskgate’.” National Review, 21 Jan. 2022, https://www.nationalreview.com/corner/nprs-farcical-triple-down-on-maskgate/. Accessed 3 May 2022.
Patteson, Callie. “White House’s Klain Leaked Breyer Retirement New: Dem Se. Durbin.” New York Post, 1 Feb. 2022, https://nypost.com/2022/02/01/white-houses-klain-leaked-breyer-retirement-news-dem-sen-durbin/. Accessed 3 May 2022.
“For Immediate Release.” Supreme Court of the United States, 3 May 2022, https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_05-03-22. Accessed 3 May 2022. Press release.
Curl, Joseph. “Liberal Clerk The Likely SCOTUS Leaker, Top Harvard Prof Says.” The Daily Wire, 3 May 2022, https://www.dailywire.com/news/liberal-clerk-the-likely-scotus-leaker-top-harvard-prof-says. Accessed 3 May 2022.
Olohan, Mary Margaret. “‘Last Ditch hail mary’: Liftist Dark Money Group, Media Portrays SCOTUS Leaker as ‘Hero’.” The Daily Wire, 3 May 2022, https://www.dailywire.com/news/leftist-dark-money-group-praises-scotus-leaker-as-last-ditch-hail-mary. Accessed 3 May 2022.