Last night’s leak of a Supreme Court draft majority opinion overturning almost 50 years of abortion rights has drawn reactions from almost anyone on either side with internet access and an ounce of activism. The draft shows Justice Samuel Alito declaring, “We hold that Roe and Casey must be overruled,” referring to the court’s two landmark cases. The leaked draft doesn’t represent an official decision, and the possibility still exists that justices’ votes could change. But here’s how the day has unfolded since, as everyone from President Biden to various lawmakers and the court itself has reacted to the news.
- The Supreme Court confirmed the leak this morning. “The document described in yesterday’s reports is authentic,” its statement reads, but “does not represent a decision by the Court or the final position of any member on the issues in the case.”
- The draft’s majority vote includes five justices—Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But a final opinion isn’t expected until late June. Meanwhile, the nine members (and any language found in the opinion) could change before then.
- It could be months before we know if the leaked opinion will represent the court’s final position, or just an early round of negotiations.
- The case itself—Dobbs v. Jackson Women’s Health Organization—involves Mississippi’s sole remaining abortion clinic challenging the constitutionality of a state law that bans abortion after 15 weeks. The lower courts ruled in favor of the clinic, de facto upholding Roe. As currently written, this ruling would remand “authority to regulate abortion” to state governments. Twenty-six states are set to definitely or likely ban abortion if the Supreme Court overturned Roe.
- Chief Justice John Roberts issued a statement this morning calling the leak a “singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” He said he’s asked the Marshal of the Court to investigate.
- Argument has gone on all day over which political camp the leaker belongs to. But several Republicans are already on the record advocating for the harshest possible punishment. Senator Ted Cruz has said he wants the responsible party to be “fired, prosecuted, and [have] to serve real jail time.” Senate Minority Leader Mitch McConnell’s statement blames the leak on “the radical left,” and argues “the Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable.”
- But people with more legal expertise are debating if, in fact, the leak constitutes a crime, even if it is an obvious ethics breach. The consensus appears to be that it was probably not a violation of the law.
- President Biden (whose office said he, too, learned of the leak from Politico) issued a statement that first admitted the White House wasn’t even sure “whether this draft is genuine.” But then he joined other top Democrats in calling on Congress to respond by passing a federal right to an abortion. “A vote on this legislation is not an abstract exercise—this is as urgent and real as it gets,” Senate Majority Leader Chuck Schumer said this morning.
- However, this vote would be largely symbolic at this juncture. While Democrats do control the Senate, it’s with 50 seats, meaning they can’t rally the 60-vote supermajority needed to overcome a filibuster.
- This fact sparked new calls today from Bernie Sanders and others to end the Senate’s filibuster instead. Yet Democrats don’t have the votes for that, either. Senators Joe Manchin and Arizona Kyrsten Sinema—the party’s two most-centrist members—oppose altering the filibuster rules unless it’s with bipartisan support. Manchin wouldn’t discuss the SCOTUS leak today, but would address keeping the filibuster in place: “The filibuster is the only protection we have in democracy,” he told the press. “We’ve protected women’s rights with the filibuster.”
- Business leaders were also slow rush out an opinion, perhaps aware this leaked decision doesn’t represent settled law yet. The most visible executive to issue a statement so far is Sheryl Sandberg, who this afternoon wrote on Facebook: “This is a scary day for women all across our country.”
- Journalists at Politico have reportedly been told to be cautious about who enters their D.C. building, and to consider removing items that identify them as Politico employees from the office.
- Meanwhile, security is ramping up as protesters spill into Washington. The Capitol Police, the D.C. Police Department, and the Supreme Court Police all say they’re increasing their presence. The Washington Post reports that D.C. police’s Civil Disturbance Unit has been activated. Protesters started gathering at the Supreme Court last night, and demonstrations at the building’s steps are likely to continue in the days ahead.