What They’re Saying About the Supreme Court Leak and the Draft Decision
That’s the Talk of DC

May 3, 2022 by Dan McCue
What They’re Saying About the Supreme Court Leak and the Draft Decision
A crowd of people gather outside the Supreme Court, early Tuesday, May 3, 2022 in Washington. (AP Photo/Alex Brandon)

WASHINGTON — The story hit like a lightning bolt shortly after 8:30 p.m. Monday night: a draft opinion leaked to Politico indicated that in a preliminary vote on a Mississippi abortion case, the Supreme Court had voted to overturn Roe v. Wade, the landmark 1973 decision that has guaranteed a woman’s right to an abortion for nearly 50 years.

Within minutes of the story’s publication, barricades had been set up outside the high court and within an hour, protestors were out in force to object to a future in which American women of childbearing age will have fewer reproductive rights than their mothers or grandmothers.

The draft opinion indicating the Supreme Court has voted to overturn Roe v. Wade, the landmark decision that guarantees abortion access, sent immediate shock waves throughout the United States, as many Americans braced for a future without reproductive rights that had been established for nearly a half-century.

In a statement issued Tuesday, Supreme Court spokeswoman Patricia McCabe confirmed that the document given to Politico is authentic, but said, “It does not represent a decision by the court or the final position of any member on the issues in the case.”

The high court’s decision in Roe v. Wade affirmed the right to receive an abortion under the 14th Amendment, the court ruling that abortions were constitutionally protected up until about 23 weeks when a fetus can typically live outside the womb. 

Last year, a far more conservative Supreme Court agreed to hear a challenge to Mississippi’s 15-week abortion ban, which state lawmakers had passed specifically to force the court to review Roe and abortion rights cases that followed it, including Planned Parenthood v. Casey, the 1992 decision that largely affirmed Roe.

The draft opinion in the case Dobbs v. Jackson Women’s Health Organization, apparently written in February by Justice Samuel A. Alito Jr., would shift the decision of abortion’s legality to individual states.

According to the Guttmacher Institute, a research and policy organization committed to advancing sexual and reproductive health and rights worldwide, overturning Roe would make abortion immediately illegal in at least 13 states where state lawmakers have passed so-called “trigger laws” in anticipation of such a ruling.

In some cases, the state law requires an official such as an attorney general to certify that Roe has been struck down before the law can take effect, the institute says.

But a number of other Republican-led state legislatures have already moved to limit abortion access. An analysis by the Guttmacher Institute found a total of 23 states have laws aiming to limit abortion access, while nine continue to have their pre-Roe abortion bans on the books, though unenforced.

In addition, the institute has found:

  • Nine states have unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe’s absence.
  • Seven states have laws that express the intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.
  • Four states have passed a constitutional amendment explicitly declaring that their constitution does not secure or protect the right to abortion or allow use of public funds for abortion.

On the other hand, it also found:

  • Sixteen states and the District of Columbia have laws that protect the right to abortion. 
  • Four states and the District of Columbia have codified the right to abortion throughout pregnancy without state interference.
  • Twelve states explicitly permit abortion prior to viability or when necessary to protect the life or health of the pregnant person.

What follows is a compendium of what’s being said in a variety of forums about the Supreme Court’s apparent stance on the future of Roe v. Wade and the leak itself, which many see as extraordinary in and of itself.

Chief Justice John Roberts Jr.

“To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way.

“We at the court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the court. This was a singular and egregious breach of that trust that is an affront to the court and the community of public servants who work here.

“I have directed the marshal of the court to launch an investigation into the source of the leak.”

President Joe Biden

“We do not know whether this draft is genuine, or whether it reflects the final decision of the court. 

“With that critical caveat, I want to be clear on three points about the cases before the Supreme Court. 

“First, my administration argued strongly before the court in defense of Roe v. Wade. We said that Roe is based on ‘a long line of precedent recognizing the 14th Amendment’s concept of personal liberty … against government interference with intensely personal decisions.’ I believe that a woman’s right to choose is fundamental. Roe has been the law of the land for almost 50 years, and basic fairness and the stability of our law demand that it not be overturned.

“Second, shortly after the enactment of Texas law SB 8 and other laws restricting women’s reproductive rights, I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court. We will be ready when any ruling is issued.

“Third, if the court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”

Joint statement from House Speaker Nancy Pelosi, D-Calif., and Senate Majority Leader Chuck Schumer, D-N.Y. 

“If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past 50 years — not just on women but on all Americans.

“The Republican-appointed justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history. 

“Several of these conservative justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation — all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century.

“The party of Lincoln and Eisenhower has now completely devolved into the party of Trump. Every Republican senator who supported Sen. [Mitch] McConnell, {R-Ky.], and voted for Trump justices pretending that this day would never come will now have to explain themselves to the American people.”

Senate Republican Leader Mitch McConnell, R-Ky.

“One of the court’s most essential and sacred features was smashed just to buy the outrage-industrial complex a few extra days to scream nonsense about what the court might rule.”

Later, on the Senate floor, McConnell spoke at greater length:

“For years, the radical left has attacked the institution of the Supreme Court. Last night, it appears their campaign hit a new low.

“Historically, the justices, clerks and staff have prized and protected the court’s confidentiality. The justices must be able to discuss and deliberate in an environment of total trust and privacy. Americans cannot receive a fair trial if politicians, pundits, bullies and mobs get a say in court.

“Judicial independence is vital. But the far left has spent years shamelessly attacking it.

“Democrats in Congress have endorsed plans for partisan court-packing. They’ve sent the justices threatening legal briefs. They’ve scheduled sham hearings to smear judges.

“In 2020, the Senate Democratic leader marched across the street to the court and shouted threats at multiple justices by name if they didn’t rule how he wanted.

“In 2018, activists literally chased senators around the Capitol.

“And now, last night, a shocking new breach.

“Somebody, likely somebody inside the court, leaked a confidential internal draft to the press. Almost certainly in an effort to stir up an inappropriate pressure campaign to sway an outcome.

“The radical left immediately rallied around the toxic stunt. The cheerleaders for partisan court-packing applauded what they suggested was the work of ‘a brave clerk’ making ‘a last-ditch Hail Mary attempt’ to cause a political firestorm and ‘cause the court to reconsider.’

“Liberals want to rip the blindfold off Lady Justice. They want to override impartiality with intimidation. They want to elevate mob rule over the rule of law.

“The same political movement that used a leak to move up the timeline of Justice Breyer’s retirement process is trying to use another leak to make the court less secure and less impartial.

“Never before in modern history has an internal draft been leaked to the public while the justices were still deciding a case.

“Whoever committed this lawless act knew exactly what it could bring about.

“The justices already require security. Less than two weeks ago, an unbalanced person lit himself on fire on the court steps. Less than three years ago, a liberal mob tried to storm the court, shoving past law enforcement and pounding on the doors.

“Everybody knows what kind of climate the far left is trying to fuel. One that is antithetical to the rule of law.

“Right on cue, top Democrats began publishing wild statements about what the court might decide, packed with using unhinged rhetoric that could easily … light a match.

“Activists flocked to the court. An angry crowd surrounded the court, chanting justices’ names. There are renewed calls to smash the institutions of both the Senate and the court at the same time.

“One of the court’s most essential and sacred features was smashed just to buy the outrage-industrial complex a few extra days to scream nonsense about what the court might rule.

“This lawless action should be investigated and punished to the fullest extent possible. I am certain the chief justice will seek to get to the bottom of this. If a crime was committed, the Department of Justice must pursue it completely.

“I want all nine justices to know there are still principled senators who have their backs no matter what. There are still some people in this Capitol — and a majority in the Senate — whose support for the rule of law is not conditional.

“The court should tune out the bad-faith noise and feel completely free to do their jobs. They should follow the facts and the law wherever that leads.

“As I’ve warned in the past, courts bowing to activist pressure would never enhance judicial legitimacy. It could only erode it. And the hostage-takers would never settle for half a loaf.”

Health and Human Services Secretary Xavier Becerra

“Patients make their own decisions about their own bodies. That’s their right. I strongly believe in protecting and promoting access to health care — that includes sexual and reproductive health care, and that includes safe and legal abortion care.

“Abortion remains legal today and patients can access care. The laws we have seen coming out of states that deny care are dangerous.”

Sen. Lindsey Graham, R-S.C.

“It is a sad day for the Supreme Court and a dangerous day for the rule of law.

“The radical assault on our institutions and the Constitution itself has reached a new level with the release of a draft opinion on a major issue facing the court. Whether you are a liberal, conservative or moderate, the integrity of the court has been compromised by this outrageous act — an affront to the rule of law.

“For over two hundred years, the Supreme Court has been able to deliberate and build consensus without its decisions being compromised in this manner. This has been forever changed by this leak.

“In America, the radical left is hell-bent on reshaping institutions that have stood in the way of the outcomes they desire. They want to pack the Supreme Court to change the current conservative nature of the court which was achieved through the democratic process. They intend to abolish the Electoral College to shift power away from rural states to large, blue states. They would also have a federal takeover of our state election systems and undermine election integrity. The radical left is now calling for the end of the Senate filibuster as a response to the draft opinion being released publicly. This only compounds the problem. Why destroy the Senate after this outrage against the Supreme Court’s deliberative process? When it comes to outcomes, the radical left will do whatever they view as necessary — institutions be damned.

“If the Supreme Court overturns Roe v. Wade, which I believe was one of the largest power grabs in the history of the court, it means that every state will decide if abortion is legal and on what terms. That, in my view, is the most constitutionally sound way of dealing with this issue and the way the United States handled the issue until 1973.”

Sen. Susan Collins, R-Maine

“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.

“Obviously, we won’t know each justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”

Rep. Suzan DelBene, D-Wash., chair of the New Democrat Coalition.

“New Dems remain more committed than ever to protecting the freedom of every woman to make decisions about her own body and her own future. If this draft decision were to be released by the court, American women everywhere would lose this critical constitutional right.

“The vast majority of Americans believe politics has no place in the doctor’s office and support a woman’s right to safe reproductive care. We will keep working tirelessly to enshrine this essential freedom into federal law. If we don’t act quickly, there could be dark consequences for women today and for generations to come. The Senate must send the House-passed Women’s Health Protection Act to the president’s desk now.”

Rep. Ami Bera, D-Calif.

“As a doctor, I strongly believe that a woman’s personal health decisions should be made between her and her doctor, NOT the government or politicians.”

Rep. John Yarmuth, D-Ky.

“It’s official, the United States is under minority rule, and that minority doesn’t include women. Forced birth is un-American. Banning abortion means women will die. It’s that devastatingly simple.”

Gov. Gretchen Whitmer, D-Mich.

“Women are waking up this morning feeling hopeless, but we can’t go back. I’m more motivated than ever to keep fighting like hell to ensure abortion remains safe and accessible in Michigan.”

Sen. Tim Kaine, D-Va.

“Let’s pass the Women’s Health Protection Act to codify the protections in Roe v. Wade ASAP.”

Rep. Elissa Slotkin, D-Mich.

“If tonight’s news is true, Michigan’s 1931 state law banning abortion would snap back into effect, making any abortion illegal in our state — even if the mom will die, or if she was raped by a family member. No exceptions. 

“My poor mother is turning over in her grave. The House has already voted to codify Roe — let all senators be on record on this one in an up-or-down vote.”

Gov. Janet Mills, D-Maine

“I want to be very clear: Unlike an apparent majority of the Supreme Court, I do not consider the rights of women to be dispensable. As long as I am governor, I will fight with everything I have to protect reproductive rights and to preserve access to reproductive health care.”

Jonathan Peters, University of Georgia School of Law

“It’s remarkable, the leak of what appears to be an initial draft majority opinion. SCOTUS generally has kept its secrets and has kept confidential its internal processes and deliberations. But the court does occasionally leak, and it has leaked before about Roe v. Wade

“Its recorded history of leaks dates back to the mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release.

“Consider the 1852 case Pennsylvania v. Wheeling and Belmont Bridge Company. Ten days before the court handed down its decision, the New York Tribune reported the outcome.

“Two years later, the bridge case returned to the court, and again the Tribune scooped the justices before they made their decision public. Later that year, the Tribune published a running account of the deliberations in Dred Scott.

“Historians have speculated that these leaks came from Justice John McLean, who authored the first bridge opinion before dissenting in the second one, as well as Dred Scott.

“More recently, in 1968, New York Times reporter Fred Graham wrote a story about Justice Fortas’s extrajudicial activities to support the Vietnam War, after a law clerk leaked the details to Graham.

“The 1970s brought a wave of leaks. First, Justice Douglas in June 1972 wrote a memo to his colleagues about Roe v. Wade. Somehow, it reached the Washington Post, which published a story about the memo and the court’s inner deliberations.

“Then, Time magazine published a story about Roe v. Wade before the court announced it, reporting the outcome and the vote. Infuriated, Burger demanded a meeting with Time’s editors, chastising them for scooping the court.

“The chief justice believed a law clerk was to blame, so he ordered all clerks not to speak to reporters. This resulted in what became known as the ’20-second rule.’ Any clerk caught talking to a reporter would be fired within 20 seconds.

“In 1977, NPR penetrated the justices’ conference by reporting that they had voted 5-3 not to review the convictions of three defendants in the Watergate cover-up cases.

“The story, obtained by Nina Totenberg and confirmed by the New York Times, also reported that Burger had delayed the announcement of that decision so he could try to recruit the fourth vote necessary to review the convictions.

“A couple years later, Burger was still fighting leaks. In 1979, he reassigned a typesetter at the court’s printing office after concluding that the typesetter had leaked nonpublic information to ABC correspondent Tim O’Brien.

“Not long before, O’Brien had reported in advance the outcome of a case involving the right of courts to question reporters about their thoughts during the editorial process. O’Brien then broke another story in 1986, when he scooped the justices on a decision re: budget balancing.

“O’Brien reported that on a particular day the court would strike down a key part of a law. He was right about the outcome but not the day. Years later, a [United Press International] reporter said Burger intentionally delayed the decision: ‘Burger was ticked off and just wanted to stick it to … O’Brien.’

“Other leaks have been more retrospective. In 2004, for example, a group of law clerks from the 2000 term leaked to Vanity Fair the details of the secret deliberations in Bush v. Gore.

“And then, of course, there are the books: “The Brethren,” by Bob Woodward and Scott Armstrong; “Closed Chambers,” by Edward Lazarus; “Sorcerers’ Apprentices,” by Artemus Ward and David Weiden; “Supreme Conflict,” by Jan Crawford; and “The Nine,” by Jeffrey Toobin. 

“Relying on sources inside the court, each book in its own way pulls back the curtain and invites you to explore life, politics and conflict at the court.

“Even more recently, CBS’s Jan Crawford reported in 2012 that Chief Justice Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc.

“All of which is to say: Supreme Court leaks are rare and remarkable, but they are not unprecedented. I’ve done some research on this, and I’m just sharing for anyone who might be interested in this wider context.”

Rep. Katie Porter, D-Calif.

“From the draft opinion: ‘[Abortion opponents] note that attitudes about the pregnancy of unmarried women have changed drastically.’ Not a single justice knows what it’s like to be one of the 10+ million single parents in America. I do, and I support a woman’s right to choose.”

Sen. Tammy Baldwin, D-Wis.

“If the Supreme Court is going to legislate from the bench and turn back the clock 50 years on Roe v. Wade, then the Senate needs to pass my Women’s Health Protection Act, and if we need to eliminate the filibuster to get it done, we should do that too. “

Gov. Roy Cooper, D-N.C.

“Now more than ever, governors and state legislatures must stand up for women’s health care. We know the stakes and must stand firm to protect a woman’s choice and access to medical care.”

Brian Fallon, executive director of Demand Justice, a left-of-center legal advocacy group.

“All Democrats need to show the same urgency as the clerk who apparently risked his or her career to sound this alarm. Those on the inside know best how broken the institution is. We should listen.”

Former Rep. Justin Amash, L-Mich.

“Leaking a draft opinion of the Supreme Court destroys trust among the justices and undermines justice. The justices must be able to share their thoughts candidly — and vulnerably — with one another. They are judges deciding cases, not legislators writing laws that need public input.”

Carrie Severino, president of the Judicial Crisis Network, a conservative advocacy organization.

“The reported draft opinion is thoughtful, scholarly and thorough. It does the work that the majority in Roe and Casey refused to do, looking to the Constitution itself to determine whether it includes a right to an abortion. The opinion concludes it does not.

“Justice Alito’s opinion does not mince words about Roe and its progeny. He describes Roe as ‘an abuse of judicial authority’ and as being ‘on a collision course with the Constitution from the day it was decided.’

“More Alito on Roe: ‘[W]ielding nothing but “raw judicial power,” the court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.’

“The opinion’s excellent discussion of the stare decisis factors notes that ‘some of our most important constitutional decisions have overruled prior precedent,’ including Brown v. Board, West Coast Hotel Co.  and Barnette.

“With this draft opinion, the court explicitly rejects attempts to game out the political ramifications of its decision and confines itself to doing its job, ‘which is to interpret the law, apply long-standing principles of stare decisis and decide the case accordingly.’

“And that is exactly the court’s job. Here the court finally takes itself out of the business of legislating abortion — a task for which it lacks both the authority and expertise. Instead, that job will rightly be returned to the people and their elected representatives.

“This is an outstanding opinion, but it is also one that we should not have read tonight. The forces on the radical left that seek to undermine the institution of the court have no limit; they will stop at nothing to get what they demand.

“This leak is just the latest iteration of the left’s shameful campaign to intimidate and undermine the court, and it should be seen for exactly what it is.”

Sen. Ed Markey, D-Mass.

“I am asking every member of the Senate right now, what other judicial outrage must we endure from this illegitimate majority before we act?”

Rep. Sara Jacobs, D-Calif.

“As one of the very few women of reproductive age in Congress, I know what a gut punch this decision would be to our freedom to control our own bodies. This is what it looks like when our institutions protect archaic rules above everything else.”

Rep. Don Beyer, D-Va.

“Thinking about the many times Justices Gorsuch, Kavanaugh, and Barrett assured the Senate Judiciary Committee and the American people that Roe v. Wade was ‘established precedent.’ I didn’t believe them, but they said it under oath.”

Gov. Glenn Youngkin, R-Va.

“I am in utter disbelief that the sacred confidentiality of the Supreme Court would be violated in this manner. Sadly, this leak was done in order to cause chaos and to put pressure on justices and elected officials.

“It’s premature to speculate on what the Supreme Court’s decision will be; however, we learned from listening to Virginians over the last year that we have much common ground on this issue. I am pro-life, and I have been very clear about that since the day I launched my campaign. While we wait for the final June decision, we will be focused on lowering taxes for Virginians, funding education and law enforcement, because we need to get a budget passed.”

Rep. Nancy Mace, R-S.C.

“What would otherwise be a great day for our country for the lives of the unborn has now been marred by an unprecedented and politically motivated leak, obviously intended to intimidate our Supreme Court justices.

“I have and will continue to support the rights of the unborn. As a legislator, I am proud of my pro-life record. And as a ranking member of the House Oversight Committee, we need to get to the bottom of this unprecedented breach in protocol from our highest court. I sincerely hope this is not a paradigm shift in the way the court operates going forward but is a moment viewed with sadness by both parties for the grave political miscalculation that it is.

“I have always supported the rights of states and local communities to govern themselves through our unique system of federalism.”

Stacey Abrams, candidate for Governor of Georgia

“As a woman, I am enraged by the continued assault on our right to control our bodies and our futures. As an American, I am appalled by the Supreme Court breach and its implications. As the next Governor of Georgia, I will defend the right to an abortion and fight for reproductive justice.”

Debbie Cox Bultan, CEO of NewDEAL

“This opinion, if it is ultimately agreed to by a majority of the justices, would mark a historic setback for women’s health and the reputation of our highest court. Whatever the ultimate outcome, it seems clear that the Supreme Court is poised to take away rights that have been protected for a half century by Roe v. Wade. Such a decision would immediately make abortion illegal in many states, with more to follow, leading to unacceptable inequities in access to reproductive health care for millions of women.”

“These events provide a stark reminder of the importance of strong leadership at the state level, where legislators and governors make so many of the decisions that directly impact people’s lives. While we should call for action in Congress, anyone angered by today’s news must recognize the critical role that state leaders will play moving forward, and the support that pro-choice leaders will need to respond.”

Reginald Turner, president, American Bar Association

“The American Bar Association has long supported the right to reproductive choice under existing Supreme Court precedents. The association opposes any law that prevents access to a legal abortion and supports the rights of women to choose to terminate a pregnancy before fetal viability or to protect the life or health of the mother.

“Over the past 49 years, the right to choose to have an abortion before viability has become embedded in the fabric of our society. It has become a right that affects women in every way — from economics, to health, to career choices and family life. Reversing this right would undermine the stability of the law gained through our adherence to precedents; it would jeopardize the public’s faith in our legal institutions; and it would have a devastating effect on the expectations — and the lives — of millions of women.

“The ABA remains committed to protecting the freedom of individual women to make the highly personal and complex decision of whether to have an abortion.”

Dan can be reached at dan@thewellnews.com and at https://twitter.com/DanMcCue.

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