The Draft Opinion Overturning Roe, Part 2

Yesterday, I wrote the first part of an essay analyzing the likely legal, political, and institutional effects of the publishing of a draft opinion of the Supreme Court overturning Roe v. Wade. That covered the legal effects. Today, I turn to the political and institutional issues. Again, except as noted in the discussion of the institutional issues, I assume for purposes of this discussion that the decision of the Court that is ultimately issued is substantially similar to Justice Alito’s draft.

Before turning to the meat of today’s analysis, I wanted to add a note about an additional legal issue that will surely be legislated and litigated heavily if Justice Alito’s draft becomes the opinion: travel from states where abortion is prohibited to states where abortion is legal to seek an abortion. Several states are already considering legislation to address this. Legislation has been passed or is under active consideration in some states where abortion would be illegal creating civil liability for anyone who assists a resident of that state in seeking an abortion outside the state. I’m confident that at least some heavily anti-abortion prosecutors would also attempt to bring criminal charges under an accomplice or conspiracy theory. Conversely, some governors and legislative leaders in states where abortion would remain legal have promised to pass legislation immunizing anyone who assists people in receiving an abortion in that state. If the Supreme Court adopts the draft opinion, these legislative actions would raise serious right to travel and federalism concerns. Under existing law, it should be clear that states cannot restrict the ability of their residents to travel to other states to receive services that are legal in those states. However, precisely because Justice Alito’s opinion treats abortion as unique, I lack confidence that the Supreme Court would uphold the right to travel — especially as applied to laws that try to mask prohibition as private litigation, like the legislation recently adopted in Texas that the Supreme Court has thus far tolerated.

Political Consequences

We can’t be confident about the political effects of overturning Roe, but they would likely be substantial. Nationally, a substantial majority of the population supports legal abortion (although many of those people also support some restrictions on abortion, such as parental notification requirements for minors). A decision overturning Roe would likely increase the salience — the importance of an issue in determining actual voting behavior — of abortion for pro-choice voters. Conversely, if the anti-abortion movement has already effectively used overturning Roe as a rallying cause for its voters, there may not be a major change in salience for them. But perhaps there will be — anti-abortion voters who may have become discouraged by feeling that they were always promised a decision overturning Roe but never receiving one might feel invigorated by the court victory.

The most critical point, however, is that elections are decided in individual states and individual districts, not nation-wide. There are many states where the people overwhelmingly support legal abortion, and where abortion will remain legal even if Roe is overturned. For example, about 64 percent of Mainers believe that abortion should be legal in all or most cases, while only 33% believe that it should be illegal in most or all cases. (All polling data is drawn from the Pew Research Center’s Religious Landscape Survey. While the data is not particularly recent, Pew asserts that opinions about abortion have been largely stable over time and the data is still good.). Would the draft Dobbs opinion have a major effect in Maine’s politics? Maine is, after all, something of a swing state, with one Republican U.S. Senator and its electoral votes having split 3–1 in favor of the Democratic candidate in each of the last two elections, although it hasn’t voted for a Republican presidential candidate statewide since 1988. Would overturning Roe make Maine a solidly Democratic state, and create serious troubles for Sen. Collins if she seeks reelection in 2026 as a Republican who is pro-choice but voted to confirm Justices Gorsuch and Kavanaugh? Perhaps. The pro-choice majority in Maine might be activated by Dobbs and convinced that they need to turn out. On the other hand, they might well observe that abortion remains readily available in Maine and not change their voting pattern significantly.

There are some states where overturning Roe will almost certainly give a substantial advantage to Democrats, perhaps especially in the upper Midwest. In Michigan, approximately 54% of voters are pro-choice, with only 42% being anti-abortion. Abortion’s availability is absolutely at stake in Michigan’s elections. The state legislature is currently controlled by Republicans who are anti-abortion, and Michigan has a 1931 law that has never been repealed criminalizing abortion in all cases. It seems very likely that a decision overturning Roe would have a substantial effect boosting the electoral prospects of Democrats in Michigan, perhaps especially at the state level.

Relatively few states have substantial majority support for laws prohibiting most or all abortions. With a narrow definition of “majority” (only counting states where the entire range of opinions in the margin of error is above 50%), Pew lists only 7 states as having anti-abortion majorities, all located in the western part of the Southeast United States — West Virginia, Kentucky, Tennessee, Arkansas, Alabama, Mississippi, and Louisiana. A handful of additional states have more anti-abortion voters than pro-choice voters, but within the margin of error or with both below 50%. That includes some states that have adopted very restrictive abortion laws — for example, Ohio is roughly evenly divided on whether abortion should be legal (47% illegal in most or all cases, 48% legal in most or all cases), but has a ban on all abortions after six weeks that would go into effect if Roe falls. Even a state like Oklahoma, with overwhelmingly Republican politics and a trigger law that would ban all abortions except when necessary to save the life of the mother, has a narrow pro-choice majority, with 51% saying that abortion should be legal in most or all cases and 45% saying that it should be illegal in most or all cases. I don’t think a ban on abortion is likely to make Oklahoma a purple state — Donald Trump received about twice as many votes as Joe Biden in the last presidential election in the state and most gubernatorial elections have been comparably uncompetitive. But I would expect it to result in Democratic swings at the margins, likely with a handful of additional Democratic state legislators. And in other states with strong pro-choice majorities but traditionally Republican politics, like Montana, it might make a substantial difference.

Overall, I’d expect the biggest effects to be in states like Michigan, Minnesota, and Wisconsin, with substantially more pro-choice voters than anti-abortion voters but where prohibition of abortion is actually plausible and with strongly organized anti-abortion politics within the Republican Party. I would expect the effects to be strongest in state-level politics, with attenuated effects on federal elections — but given razor close presidential and congressional elections recently, even small effects could be determinative.

I have two other quick points before I wrap up the political section of this analysis. First, it’s impossible to separate abortion politics from the anti-democratic features of the American political system. The Senate’s overrepresentation of smaller states and unconstitutional supermajority cloture requirement, gerrymandering of legislative districts, and the Electoral College causing Republican candidates to win two of their last three presidential victories despite losing the popular vote have shaped policy on abortion. Without the Electoral College and the Senate, the Supreme Court would not have a majority to overturn Roe. Without those same anti-democratic flaws in our political system, the pro-choice majority in the country would have its preferences more accurately reflected in law even without Roe. And those same mechanism will blunt any gains Democrats realize from organizing around preserving abortion rights.

Second, any Democratic swing caused by Dobbs would represent the common political “thermostatic” reaction, where political gains by one side cause a backlash by mobilizing opponents more than they maintain the mobilization of supporters. The nature of these reactions is that they cause pendulum swings in politics, and that they can make policy defeats turn into political victories. But in considering these effects, we should remain focused on the fact that the point of politics is to shape policy. A policy defeat over abortion is still a defeat for pro-choice, Democratic goals, even if it leads to later pro-choice, Democratic election victories. The one caveat is that short-term defeats can sometimes lead to longer term victories. Still, the reason I began with the legal piece is because the primary way in which we should understand Dobbs is on its direct legal effects and their practical consequences for the availability of abortion, with the political ramifications treated as secondary.

Institutional Considerations and the Supreme Court: The Leak

Up until now, I’ve focused on the effects that the Dobbs draft opinion would have on abortion law and on electoral politics. Those are by far the most important issues here. I’ve deliberately avoided talking about the leak of the draft opinion and the effects that will have within the Supreme Court, because that is comparatively unimportant and the primary focus should remain on the substantive and political issues. However, despite that, I believe the leak is a very big deal for the Supreme Court as an institution. I also think that we can gain some insight into what’s likely to happen in the future within the Supreme Court because of how justices respond, and in turn engage in some reasoned speculation about who might have shared the draft with the media. I want to stress again, however, that this is secondary to the direct and indirect political effects of the ultimate decision in Dobbs.

Confidentiality is a bedrock principle of legal practice. I never clerked for the Supreme Court, but on the first day of my clerkship for an appellate judge, my judge stressed to all of us that we owed the same duty of confidentiality to the court as we would subsequently owe to our clients. Every time even minor information about the internal decision-making of a court is leaked, it shocks me. It represents a core breach of duty, one of the very few sorts of things for which lawyers are actually disbarred. Indeed, if the leak was by a clerk and comes out, the appropriate consequences would include the clerk being disbarred (or refused admission to the bar) and never being permitted to practice law.

The standard practice for federal appellate courts is that the deliberations of the court are strictly confidential. That allows judicial personnel — primarily judges and their law clerks — to consider and wrestle with ideas and issues openly and freely, without concern that an exploration of a possible outcome will become public and the source of external criticism. It means that drafts, while produced with care, hard work, and deliberation, are also produced with the understanding that they will be revised and edited before publication. Intemperate writing or flawed analysis can be modified or corrected. Those norms are an important part of maintaining collegiality and positive relationships within a court, and that’s important for a court to function effectively.

Some of the federal courts of appeals, such as the Second, where I clerked, are known for their collegiality and the careful respect with which the judges and their staffs treat each other, even when they disagree fervently. Others, such as the Sixth, have been at times notorious for the breakdown of collegiality. The deliberate violation of the norm of confidentiality in Dobbs will threaten to seriously disrupt the internal functioning of the Supreme Court. If it turns out that a justice condoned the leak — which I think is quite plausible — it will have huge ramifications for that justice’s ability to work effectively with their colleagues.

The norm of secrecy until finished decisions are released is not the only way a court can be run. Apparently, some California appeals courts issue draft opinions before oral argument, both as a way of increasing efficiency and as a way of focusing the oral argument. That might be a good system. But it’s decidedly not the system used by the Supreme Court, or by the federal appellate courts in general.

One of the other things to understand is that the leak has a tendency to shift perspectives on the court towards thinking of it more as a political body — the sort of institution in which you expect people to throw sharp elbows and use leaks to the media as part of a strategy to achieve political goals — and less as a legal body. Courts in general, and the Supreme Court in particular, is of course a political body. The political beliefs and preferences of the justices on the Court play important roles in shaping its decisions, and those decisions have enormous policy implications throughout the nation. To the extent that many Americans view the Court as purely a legal institution, engaging in the dispassionate application of neutral principles of legal interpretation, the leak may have a salutary effect of helping people to correctly view the Court as a political institution. Precisely because of my belief that we need to acknowledge the political aspects of the Court, I break with the norms of my profession by referring to “Democratic” and “Republican” justices. In a world where all of the Republican justices are much more conservative than all of the Democratic justices, it is pure obfuscation to assert that there are no Republican justices, only conservative justices who happen to be registered as Republican voters and were appointed by Republican presidents.

However, while the Court is a political institution, it’s not purely a political institution. It’s also a legal institution, bound by the norms of judicial decision-making, and while justices are political actors, they are not purely political actors — they are not politicians in the conventional sense that members of Congress are, nor even political in the way that political appointees in a presidential administration are. While the popular understanding of the Court has put too much emphasis on its role as a legal body and understated its role as a political body, that same understanding is paradoxically essential to justices performing their jobs well. If the justices view themselves as politicians, pursuing their policy goals through the Court as only one arm of a political party’s efforts, it encourages them to dishonest, lawless judging. I fear that the Court has already slid dismayingly far down that path, particularly through the involvement of the Federalist Society in increasing the degree to which Republican justices are appointed because they are reasonably smart Republican party hacks. And I worry that this leak may accelerate that process and do more damage. I want a Court whose members are committed to being a legal institution and to not just being politicians, while functioning in a broader system that recognizes that the Court is also a political institution. While the leak may help with the latter, I fear that it will harm the former.

Finally, I want to talk about how I would expect the leak to influence the Court in this case, and what that says about who might have shared the opinion. The tendency of the justices will be to make a show of not being influenced by the leak. Because they want to think of themselves as principled jurists, not as politicians, their incentives are to dig in their heels and demonstrate that they cannot be swayed by protests, public clamor, and so forth. For this reason, while they may serve other useful purposes, I think most protests outside the Court are counterproductive in actually pushing the Court to change its decisions. It’s an old truism that “the Supreme Court follows the election returns,” but the justices don’t want to think of themselves that way. They want to think of themselves as honestly and diligently applying a judicial philosophy and determining the outcome that best applies the law as a whole, with policy arguments only considered at the margins when necessary.

Note the way that Justice Alito strives to argue that his draft opinion isn’t driven by his personal beliefs about the morality of abortion. I don’t think he’s being entirely deceptive there — I believe instead that he really, truly wants to believe that he’s correctly applying rules of stare decisis and constitutional interpretation that happen to align with his preferred policy outcome. I suspect he privately believes that his opinion on abortion does have some influence on his thinking — “I’m saving babies lives!” — but that he thinks that it is fortuitous that it lines up with his legal conclusions.

If my understanding of the psychology of a Supreme Court justice is correct — and it lines up with what many informed commentators are saying — the publication of the draft opinion makes it more likely, not less, that the Court will issue a substantially similar final decision. That remains true even if, or perhaps especially if, there’s a vocal public outcry about the draft.

With that in mind, I want to discuss who might have leaked the draft and why. First, it might have been someone acting out of pure emotion without thoughts to the consequences. That’s possible, but I think highly unlikely. It’s unlikely both because of the timing — this draft was apparently circulated in late February, so nobody reacted to seeing it by immediately deciding that they needed to celebrate it in public or share the awful news — and because the people who are likely to have had access to the draft are likely to have thought a great deal about consequences of sharing it.

Second, initial speculation was that it might have been one of the Democratic justices or one of their clerks, in an effort to shift one of the justices out of the majority. A similar theory would suggest that Chief Justice Roberts, who is almost certainly not joining this majority opinion but may have drafted a narrower concurrence in the judgment, or one of his clerks might have leaked it to try to pick off a member of the majority and produce a plurality decision where his opinion was the controlling opinion. Neither of those hypotheses seems likely in my opinion, precisely because everyone in either of those camps would know that it was more likely to have the opposite effect than the desired one. Perhaps if someone was absolutely sure that without this action, nobody would leave the majority opinion, it could be a move of desperation — a Hail Mary pass that is almost sure to fail. But would they view that as worth risking massive career and reputational consequences?

Third, if we assume that the leak makes it more likely, not less, that the draft opinion would become the opinion of the Court, that suggests that someone committed to the draft might have an incentive to lock in the draft opinion by leaking it. Under this hypothesis, someone from Justice Alito or Justice Thomas’s chambers might have been concerned that Justice Kavanaugh or Justice Gorsuch might be changing his mind and considering joining the Chief Justice’s opinion thus making that the controlling opinion of the Court, as the narrowest opinion (in terms of legal scope) that supports the outcome supported by a majority of the Court. To prevent that, they might leak the draft, hoping that the wobbley justice would then feel obliged to not let the leak change their mind. This theory nicely fits the timeline as well — perhaps the draft was leaked, not when it was first circulated, but when a powerful and persuasive concurrence in the judgment or dissent circulated.

There’s a problem with this theory, though. If a leak made it more likely that justices would feel constrained to follow their preliminary vote, and everyone involved knew that, then a leak must be from someone trying to make a justice follow their preliminary vote. But then, the solution to avoiding allowing the leak to influence the proceedings is to assume that it was from someone supporting the draft opinion, and therefore to err on the side of changing a vote away from it. So the next level reasoning might suggest that it might be effective, after all, to leak the opinion to try to shake a justice who was considering leaving the majority opinion. Of course, then the next level beyond that reverses everything again. We’re quickly faced with Vizzini’s dilemma from The Princess Bride, where “I know that you know that I know that…” I think that this really underscores the fact that leaking the draft opinion is a very high risk, low reliability way of influencing the substance of the decision. That, in turn, suggests that the motivation might have been something other than influencing the outcome of the case.

I see two possible motivations to leak the draft opinion if the goal was not to influence the outcome. The first is a media management strategy. Had the decision dropped in roughly a month with no prior warning, the media response would have been enormous. Every major newspaper would be running headlines about “Supreme Court Overrules Roe!” It would maximize public awareness, and thus maximize any backlash from pro-choice voters. Instead, the news cycle has been broken up substantially. The first reports are “the Supreme Court might overturn Roe,” not definitive statements. When the final decision comes down, it will then have a less explosive, dog-bites-man feel in the news coverage. If the final decision is less sweeping than the draft opinion, the news coverage will be even less explosive, focusing on what the Court didn’t do even as it continues to slice away at Roe’s meaning, piece by piece. Also, the coverage and discussion of the leak helps to muddle the coverage of the substantive content of the draft opinion. Instead of everything being focused on the decision, much of the media coverage is about the leak itself. It’s also notable that right-wing media sources very quickly adopted a very disciplined focus on the leak, not on the content of the draft opinion. That might suggest a prepared, pre-planned strategy, although it’s also fully consistent with coordination after the news broke.

The other is an effort, not to affect the opinion, but to give people time to address the practical effects of the decision. The decision would have enormous effects on the availability of abortions across the country, and there is important practical planning to be done in response. For example, Illinois will suddenly become the closest available location for abortions for tens of millions of Midwesterners. Indeed, Planned Parenthood of Illinois is moving into a new facility right now to prepare for an expected surge in demand. Doctors will need to be hired and to move across regions. Transportation networks will be built. And state courts in places like Michigan that might have been tempted to treat challenges to old state laws banning abortion as not yet ripe might now consider them worth deciding. It’s plausible that someone might want to get the word out early to give organizations time to respond.

All told, I think it’s most likely that the leak was from one of the supporters of the draft opinion, viewing it as something of a twofer: try to lock in any justices who might be considering changing their votes while also reducing the political backlash by smothering the news cycle. I also think there’s a very substantial chance that it was one of the justices themselves who leaked the draft, because they face far lower career consequences if they are discovered. But I also view the leak, while very important within the Supreme Court, to be mostly a sideshow when compared to the effects the actual decision will have.

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