WASHINGTON – The traditionally insular Supreme Court is about to face the full force of public pressure and abortion politics as justices make a final decision on whether to throw out the landmark Roe v. Wade ruling.
The justices are entering a politically explosive new era, drafting what may well be the most consequential opinion on women’s health and privacy in 50 years, while a watchful public primed by the nation’s culture wars looks over their shoulders and tries furiously to influence the outcome.
Justice Samuel Alito appeared to be bracing for the onslaught, stiffening the spines of his conservative court colleagues in his leaked draft opinion for the court's majority that would overturn the 1973 ruling and its constitutional right to abortion.
"We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito wrote in the February draft document that was circulated to fellow justices as they prepare a final decision, expected by June.
House Speaker Nancy Pelosi often says, quoting Abraham Lincoln, public sentiment is everything. But justices, unlike lawmakers, don't have to run for reelection.
At one point this week, more than 1,000 people flooded to the steps of the Supreme Court. In Los Angeles, police put the city on tactical alert after a confrontation between abortion rights supporters and police downtown. Fresh polling showed most Americans support preserving some access to abortion services.
"Let us fight with everything we’ve got,” Vice President Kamala Harris said in a speech at the EMILY"s List political action committee's national conference.
While President Joe Biden and fellow proponents of abortion access are fired up to defend Roe v. Wade, the pushing is far from one-sided. Republicans who have labored toward this moment for decades with efforts to fill the court with conservative justices — gaining three during the four years of the Trump administration — are determined to finally accomplish their goal.
Urging the justices to stick to their process, Senate Republican leader Mitch McConnell promised that senators would "have their backs, no matter what.”
In a televised speech from the Capitol just across the street from the court, McConnell, who is a chief architect of a campaign to confirm conservative judges, encouraged the justices to “tune out the bad faith noise and feel completely free to do their jobs.”
The leaked draft gave Americans a rare, up-close sneak preview of the typically private, hidden deliberations of the high court, and the disclosure is propelling a public outpouring of opinion and protest reflective of the nation’s long debate over abortion policy — all in the run-up to the fall's contested congressional elections.
It's unclear if the justices will be swayed by the intense public scrutiny. But the disclosure has launched the most dramatic pulling back of the curtain on the high court's work in modern memory. Not since the 1970s have the Supreme Court's private deliberations become so public — in fact, the final Roe v. Wade decision leaked hours before it was announced.
Political pressure campaigns are being launched and millions of dollars unleashed on all sides, to save or end abortion access in the U.S., all while the justices privately draft their final opinion.
While the justices themselves have lifetime appointments and are shielded from the need for campaign contributions that can influence views, elected officials and candidates running for the House, Senate and offices throughout the states will be confronted with untold efforts to force them to take sides.
“Every single American is going to see where every single senator stands on protecting a woman's right to choose,” Senate Majority Leader Chuck Schumer promised. “Americans will be watching.”
To be sure, for Democrats and others trying to preserve abortion access, public opinion is about the only tool on their side, with Congress very unlikely to salvage the Roe v. Wade ruling on its own.
The House, led by Democrats, has already approved legislation that would protect abortion access by putting the Roe ruling into law. But the narrowly split Democratic Senate will not have the votes to follow suit without support from Republicans.
Just two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, publicly support abortion access. And while they have introduced their own bill to keep abortion legal, it is not at all clear they would buck their own party leadership to help pass a Democratic measure.
Other Republicans, following McConnell’s lead, have been quick to focus on the leaking of the high court’s private draft, rather than the prospect that millions of American women could lose access to abortion services if Roe v. Wade is struck down.
Speculation is swirling over the rare leak and whether it was meant to build pressure for the outcome that Alito was proposing or against it.
Republican Sen. Mike Lee of Utah, a former law clerk to Alito, described the security around the court's work, complete with “burn bags” to collect and double-shred the day's discarded documents. He decried the breach even as he welcomed the direction the court was taking under the draft opinion.
“While I'm convinced this leak may have been an attempt to intimidate the justices in the majority, perhaps an effort to try to get them to change their positions, I'm also confident this attempt will not succeed and it must not succeed,” Lee said on the Senate floor.
Chief Justice John Roberts has ordered an investigation into the leak, but it is unclear how long that will take and whether it would be resolved before the court issues its rulings at the end of June or early July.
Republican Sen. Ron Johnson, who has supported bills to limit abortion and is up for reelection in Wisconsin, said in a statement that neither personal beliefs nor “pressure from the radical left to intimidate sitting Supreme Court justices, should be the basis on which this profound moral issue should be decided for all of society.”