The leaked draft of a majority Supreme Court decision by Justice Samuel Alito overturning Roe v. Wade means several things.
First, it indicates that in the justices’ private conference, at least five members of the court voted to reverse the 1973 abortion precedent. They aren’t bound by that vote, which they can change up to the day the final opinion is released. Almost all first drafts undergo significant revision based on discussion and debate among the justices.
So the second point to make is that Roe isn’t yet overturned, though it very likely will be.
Could anything change that result? Only if two or more justices decide to flip the court the other way. That would probably mean Justice Brett Kavanaugh and Chief Justice John Roberts would have to end up joining forces with the court’s three liberals. The draft opinion is sufficiently strident in the way it rejects Roe that it remains possible that it will lose their votes.
Kavanaugh could file a concurrence that would become the controlling opinion. And it is not utterly out of the question that he could discover an unwillingness to vote to overturn Roe — although that seems especially unlikely at this juncture.
So the first thing to understand about the draft that was leaked to Politico is that it’s a draft — not the final opinion. It can and will change.
The second is that a leak like this is unheard of. It’s a terrible blow to the court’s morale and process and legitimacy. It hardly matters whether it was leaked by liberals trying to shock the nation’s conscience, by conservatives trying to bolster the confidence of potentially wavering justices, or by some disgruntled employee looking for a thrill or money or something else. Whatever the leaker’s motive, the result is very bad.
Loss of trust
Leaks are damaging for the court because the rule of law should speak with a final voice, not a tentative one. A draft opinion is a tentative thing, a work under development. It isn’t the law.
Negotiations about opinions follow an internal logic — and a private one. If this draft can be leaked, anything can be. That changes the game, probably forever. Justices won’t be able to make suggestions or proposals without worrying about them becoming public. The whole way the court reaches decisions is now poised to change.
Then there is the loss of trust. All the justices will surely blame other chambers for the leak. Suspicion, doubt and distrust will follow.
What’s more, the chief justice will have to run an internal investigation to see what happened and to sanction the leaker.
Such an internal inquiry will be destructive and debilitating for the court’s staff, not to mention the justices.
The justices can’t be fired for leaking. They have life tenure. Anyone else can.
Then there is the way the rest of the process in this case will now be tainted. Internal debate will proceed against the backdrop of public analysis and criticism of every line of the opinion.
If the justices change Alito’s language, it will look like they were responding to public criticism. They hate that. The process they’ve always relied on is now broken.
Abortion rights are poised to fall. That’s a constitutional tragedy. But the collapse of the court’s orderly process is calamitous in its own right, albeit in a different way. It means the court will have a harder time doing the rest of its business.
Judicial legitimacy is a delicate thing. As of Monday night, it is substantially reduced.
Revoking the right to abortion would harm women and undermine basic liberty rights. It would also be bad for the Constitution and the rule of law.
The leak just makes it all worse.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
