It is a bombshell. A draft opinion leaked from the Supreme Court suggests after nearly 50 years the nation’s highest court is poised to overturn the right to abortion ensured by the nearly 50-year-old Roe v Wade decision.
Supreme Court draft opinions are not set in stone and justices sometimes change their positions on a case after a draft copy is circulated among them.
“Typically what would happen in a draft opinion is that it would be circulated among the other justices,” said News4JAX political analyst Rick Mullaney. “There could be a change in language and importantly there could even be a change in votes.
“The speculation was that Justice Roberts was seeking a compromise potentially with Justice Barrett or Justice Kavanaugh because remember the court had options here,” Mullaney said. “One, they could affirm Roe V Wade; Two, they could overturn it; or Three, they could modify it…”
“This could very well be where the court ends up,” said Mullaney. “Alito’s opinion in this draft is very strict.”
“Whoever leaked the opinion, the speculation is, did not like the opinion,” according to Mullaney. “And ironically with this leak, it may make it much more difficult for Justice Roberts to get a compromise.”
If the conclusions of Justice Samuel Alito’s draft opinion are officially released by the court before its term ends in about two months, individual states would be able to restrict when and how women could terminate their pregnancies, without federal courts having a say over the legality of those rules.
It is unprecedented that a draft opinion is released publicly. It is seen as a stunning breach of court confidentiality.
“It really is,” Mullaney emphasized. “I haven’t seen anything quite like this, especially when you take a look at the draft opinion. And with the stakes here, it is a shock wave, both in terms of how it was leaked. And it’s a shock wave in terms of the substance of the opinion.”
“It is a very emotional divide,” Mullaney adds. “And it represents a divide on the court philosophically as to how they approach judicial interpretation.”
Mullaney says there are those who worry it also breaches constitutional politics and worsens the politicization of the court.
“It really is one of the great concerns here for the credibility of the court,” Mullaney said. “We’ve heard of partisan divides, but there’s actually a judicial divide, a judicial divide on the court on how to interpret the United States Constitution.”
Mullaney explains it this way:
“The conservative justices are more originalists. They look to the text and the meaning at the time. The more liberal justices look to the text, but they also look to contemporary standards. That divide is here and to the extent liberal and conservative justices would tell you, we’re not expressing policy preferences were interpreting the constitution. (They believe) that’s important to the rule of law, that’s important to the institution.”
Supreme Court scholars also say this could potentially cast into doubt all kinds of precedents and past court rulings that have been regarded as settled law for years.