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Alito’s Opinion on Overturning Roe Reportedly Still the Only One Being Circulated at SCOTUS

Alito’s Opinion on Overturning Roe Reportedly Still the Only One Being Circulated at SCOTUS

“No dissenting draft opinions have circulated from any justice, including the three liberals.”

Justice Samuel Alito’s opinion draft on overturning Roe vs. Wade is apparently still the only one circulating at the Supreme Court, days after it was leaked.

This would seem to indicate that none of the justices have changed their views, making the overturning of Roe look more likely.

Politico reports:

Alito’s draft opinion overturning Roe is still the only one circulated inside Supreme Court

The Supreme Court is set to gather Thursday for the first time since the disclosure that it voted to overturn Roe v. Wade, and there’s no sign that the court is changing course from issuing that ruling by the end of June.

Justice Samuel Alito’s sweeping and blunt draft majority opinion from February overturning Roe remains the court’s only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes. No dissenting draft opinions have circulated from any justice, including the three liberals.

That could explain why no second draft of Alito’s majority opinion has been distributed, as typically the two sides react to one another’s written arguments and recast their own.

According to the report, all of the justices are upset about the leak, regardless of politics:

As the nine justices prepare for their scheduled, private, closed-door conference this week, they face one of the greatest crises in modern Supreme Court history, with an internal leak investigation under way, an agitated nation focused on whether the constitutional right to abortion is about to be overturned, and some justices facing angry protests at their homes.

“This is the most serious assault on the court, perhaps from within, that the Supreme Court’s ever experienced,” said one person close to the court’s conservatives, who spoke anonymously because of the sensitive nature of the court deliberations. “It’s an understatement to say they are heavily, heavily burdened by this.”

A second person close to the court said that the liberal justices “are as shocked as anyone” by the revelation. “There are concerns for the integrity of the institution,” this person said. “The views are uniform.”

Josh Blackman of the Volokh Conspiracy blog at Reason has an interesting take on what all of this might mean:

Roberts has not broadly circulated his draft concurrence, which would find a way to uphold the Mississippi law without overruling Roe and Casey. The delay in releasing that concurrence could explain the absence of any dissents. Why circulate a dissent if the majority may not hold. Kagan can keep her powder dry for now. But what is Roberts waiting for? Dobbs was argued in December. We are now in the second week in May. How long could it take to whip up a Chief blue plate special? Sophistry is not hard.

My cynical take is that circulating the draft opinion at the latest possible juncture creates chaos, and makes it more likely that things can move around without sufficient deliberation. This strategy resembles that of the death penalty abolitionists, who deliberately file last-minute appeals, hoping the rush causes a temporary stay. Of course, the response to this strategem is the Purcell principle. We are far too close to the end of the term to justify such a sudden shift in the process. I am mostly being facetious, but the analogy holds.

It seems to me that if anything changes now, it will look like the court caved to the mobs protesting at the justices’ homes. If that tactic works, it will become routine. Any time the left sees a decision it doesn’t like, they’ll do the same thing.

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Comments

UnCivilServant | May 12, 2022 at 1:08 pm

Well, when the original ruling lacks any consitutional basis, it’s hard to defend in that arena. The defenses are all ideological and political.

    The Twilight Amendment (“emanations from penumbras”) is real yet orthogonal to the black letter of The Constitution, science, and sense.

    pwaldoch in reply to UnCivilServant. | May 13, 2022 at 12:39 pm

    At what point do the SCOTUS judges start canary trapping their initial drafts so they can start to pinpoint which judge’s staffers are leaking?

      Subotai Bahadur in reply to pwaldoch. | May 13, 2022 at 9:42 pm

      That would take at the very least approval from the Chief Justice, and possibly unanimous approval. Neither will ever happen.

      They won’t be allowed to happen because it would work for the intended purpose.

      Subotai Bahadur

thad_the_man | May 12, 2022 at 1:15 pm

When are SCOTUS rulings released? I haven’t seen any since the leak.

    Olinser in reply to thad_the_man. | May 12, 2022 at 1:27 pm

    When the decision is final. Anywhere from 5 minutes to 5 months from now.

      Joe-dallas in reply to Olinser. | May 13, 2022 at 9:05 am

      all opinions for the term will be released by the end of June (unless dig’d)

      dig – dismissed improperly granted.
      That will not happen with Dobb’s

      See Scotusblog.com for informative info on USSC procedures, opinion days, etc

    buck61 in reply to thad_the_man. | May 12, 2022 at 1:37 pm

    The last decision released was on May 2, the flag case in Boston. The next scheduled day to release decisions is May 16.
    https://www.supremecourt.gov/

    henrybowman in reply to thad_the_man. | May 12, 2022 at 6:01 pm

    Yeah, that’s my question.
    “POLITICO has learned…”
    Is this just an “evidence of absence” argument?
    We know only of Alito’s draft, and only because of what is reported to be the “first ever” such leak from the Court.
    Is the fact that we don’t know of other opinions possibly just “court business as usual, the way it should be and always has been so far?”
    Or is there actual knowledge here, which could only be because of a second leak?

Dejectedhead | May 12, 2022 at 1:30 pm

The justices could mend this situation by ending division over this issue and voting 9-0.

    Martin in reply to Dejectedhead. | May 12, 2022 at 2:15 pm

    I have had this thought. Roe has been said to be legally a poor decision. If the liberal justices want to “foster respect for the court” and “help unify the country” they could vote with the majority and put out a concurring opinion that was softer and only talked about what the legal and constitutional issues with Roe.

      taurus the judge in reply to Martin. | May 12, 2022 at 2:41 pm

      Things like that are what the left says in front of the camera for propaganda effect.

      The wolf cares not about the thoughts of the sheep.

      henrybowman in reply to Martin. | May 12, 2022 at 6:04 pm

      Do you think they have the stones to issue an unanimous decision that will be read as, “all you far leftists are uniformly stupid and deluded, and there isn’t a shred of argument for your position?” I would be amazed to see either of the senior femmes do that.

      Barry in reply to Martin. | May 12, 2022 at 11:43 pm

      Geez, I want some of what you’re smoking…
      🙂

      Including by none other than Ruth Bader Ginsburg — a famous ultra-MAGA justice!!!!!1!!!!

is this another leak?

I don’t believe that there are no dissents. It is far more likely that the dissenters have written something that they haven’t circulated, either because they don’t see any point or because the wording is so angry toward the majority that they want to spring it at the last minute as a surprise.

My expectation is that it’s the second one. The dissent, when published, will be filled with outrage and accusations intended to escalate conflict and finish destroying the integrity of the court.

    Peabody in reply to irv. | May 12, 2022 at 3:13 pm

    “I don’t believe that there are no dissents.”

    Well they’re not going to leak those.

    geronl in reply to irv. | May 12, 2022 at 3:36 pm

    The dissent will be published along with the majority decision as usual. Let’s hope the leaks stop.

    Voyager in reply to irv. | May 12, 2022 at 8:50 pm

    The Volokh Conspiracy posits that this may be a case like the ACA one where the limited gov’t opinion was the only one circulating among all the judges, but in the background Roberts was working with a couple of the repeal judges privately to get them to flip, and then sprung the decision on the repeal group at the last possible minute.

    Purportedly, that’s why the dissent read so much like a majority opinion; up until pretty much the last minute, it was being written as the majority opinion, while the actual ruling was being written without all of the judges even aware of it.

    Just massively disfunctional.

Juris Doctor | May 12, 2022 at 2:47 pm

This Politico story is like the fourth leak subsequent to the original leak. When did Adam Schiff become a member of the high court?

I will believe the consternation over this leak is uniform when a clerk gets fired, and not before.

Time and again, we’ve seen naked abuse of power by the allegedly Liberal members of our government. This, of course, clashes head-on with a fundamental principle of Liberalism, namely that due process of law, and fairness in approach must apply, even in the hardest of cases.

I read Roe v. Wade when it first came out in the Supreme Court Reporter, because a lawyer put the open book in front of me on my desk. It was the first document, and maybe the last, that dealt cleanly with all the rights involved in this fraught issue.

In an imperfect world, Roe v. Wade does everything humanly possible under our form of government to minimize the number of abortions. It does so by splitting the power to deal with the abortion decision between the one person most profoundly affected (the mother) and the State. As time and the pregnancy progresses, the State has a growing interest in preserving what increasingly looks like a baby likely to survive.

The end result is that the State can never compel a woman to have an abortion, because its only interest is an increasing interest to preserve the life of a child as it gets closer to birth. It does leave the ultimate decision with the mother, provided she acts timely and definitely. If she dithers, she loses the power to kill a nearly-developed baby.

Sending this issue to the States will result in some States, someday, deciding on a wholesale slaughter of babies. We know this will happen, we saw it in China. Let’s not go there.

    buck61 in reply to Valerie. | May 12, 2022 at 3:32 pm

    it could happen but it shifts the burden from the unelected court to branches of government that are directly accountable to the people. If the people disagree with the lwo branches they have the right to vote in the people who will act upon their wishes.

    txvet2 in reply to Valerie. | May 12, 2022 at 4:35 pm

    “”It does so by splitting the power to deal with the abortion decision between the one person most profoundly affected (the mother) and the State.””

    Sad. The “person” most profoundly affected is the BABY. The mother will in any event at least survive. You continue to make a uniformly absurd argument to retain what even the left admits was a poorly framed decision.

    Joe-dallas in reply to Valerie. | May 12, 2022 at 5:08 pm

    For all the down votes, Valerie has a valid point which unfortunately we may live to regret the reversal of Roe.

    The first point, in spite of all the torture Roe inflicted on Constitutional law, Roe retained some concepts limiting abortion. It was Casey that caused the real damage to the constitution.

    As Valerie notes, what we are likely to regret is some states (CA for example) will enact legislation allowing abortion up to the moment of delivery – Which would be considered allowable under 14A of the constitution since babies have no constitutional rights until actually born.

      Milhouse in reply to Joe-dallas. | May 12, 2022 at 7:05 pm

      As Valerie notes, what we are likely to regret is some states (CA for example) will enact legislation allowing abortion up to the moment of delivery –

      How’s that different from now? Roe did nothing to prevent that, so overturning it can’t make it worse.

      Which would be considered allowable under 14A of the constitution since babies have no constitutional rights until actually born.

      Says who? Only Roe. Once Roe is gone, with its unfounded pronouncement that a foetus is not a person, it will be open to babies’ advocates to make the case that it is a person, and therefore is protected by the 14th amendment.

        Joe-dallas in reply to Milhouse. | May 13, 2022 at 8:50 am

        Milhouse – Sorry for the confusion on my thoughts –
        the language in 14A is one of the justifications the left uses to justify aborting babies up to the moment of delivery.

        Amendment XIV
        Section 1.
        All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

        I completely disagree with the pro abortionists position.

        It was Casey that obliberated limits that Roe had with the “undue burden” standard

        See the passage from Roe – “On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. . .”

        I do agree that Roe and Casey are bad constitutional decisions.

          Milhouse in reply to Joe-dallas. | May 15, 2022 at 2:40 am

          Sorry, that’s so ridiculous that anyone making that argument is downright dishonest. Yes, the 14th amendment doesn’t grant unborn babies US citizenship. What the hell has that got to do with constitutional rights? The 14th amendment couldn’t possibly be clearer that rights have nothing to do with citizenship. All persons in the USA are entitled to their constitutional rights; there is no distinction between citizens and aliens, even ones who are here illegally. If they’re here they have rights.

          Unborn babies are here. Therefore they have rights. Except that Roe says they’re not persons. Reverse Roe and that excuse disappears.

    CommoChief in reply to Valerie. | May 12, 2022 at 5:30 pm

    You are asserting that the result in Roe which widened abortion access to the tune of 60+ million abortions since is, on net, a pro choice decision. That is bat crap crazy.

      CommoChief in reply to CommoChief. | May 12, 2022 at 5:32 pm

      Pro life decision

      Valerie in reply to CommoChief. | May 12, 2022 at 5:55 pm

      I am asserting exactly that. Roe v. Wade is, net, a pro-choice and pro-life decision. It does leave the possibility of abortions happening, but ONLY on the consent of one individual, on a case-by-case basis. Overturn Roe, send the decision to the States, and we will see wholesale compulsion of abortions over and against the desires of the parents.

      China did exactly this. California will do it, too. They will start with denying medical care to unborn children that fail some sort of genetic test, and proceed all the way political affiliation, in short order. Look at what they’ve already done over the experimental COVID shots.

      Do none of you remember the vile outpouring of hostility toward Sarah Palin for her failure to kill Trig? I remember.

      The notion, that giving this power to the States is pro-life, is incandescently stupid. It is a tired re-working of the old “it can’t ever happen here” argument.

        CommoChief in reply to Valerie. | May 12, 2022 at 6:44 pm

        This isn’t the end. It’s the beginning of the real battle but now on a level playing field. The pro abortion forces will challenge States that seek to make abortion access restrictive. The pro life forces will challenge States that make no limit on abortion.

        I agree that there are many d/prog who view killing what they view as imperfect babies as a necessity; hell that’s the historical basis eugenics. Now the battle shifts to the States.

        As many as 26 have trigger laws that go into effect immediately on Roe being overturned that will drastically limit abortion. The pro life side can now play offense in the remaining 24 States who will have more easy access to abortion.

        Ironclaw in reply to Valerie. | May 12, 2022 at 7:11 pm

        You get the government you deserve. If the people of commiefornia want to vote for that, who am I to question it? They did it to themselves, they can fix it themselves. I refuse to be bound to living in the same kind of shithole as commiefornia simply because THEY voted for it there and we DID NOT vote for it here.

        billi in reply to Valerie. | May 13, 2022 at 10:05 am

        Valerie. I would still want the voters (not 9 elite Robes) to decide, through their Representatives, who dies and when. This idea of Justice is Blind is a fallacy. It all depends!!!!

        henrybowman in reply to Valerie. | May 13, 2022 at 10:44 pm

        “They will start with denying medical care to unborn children that fail some sort of genetic test, and proceed all the way political affiliation, in short order.”

        They already did the second, over COVID, to long-born humans, and didn’t need to repeal Roe to do it.
        So you can put away that hobgoblin, I’m not buying it.

        The whole aim of practical politics is to keep the populace alarmed — and hence clamorous to be led to safety — by menacing it with an endless series of hobgoblins, all of them imaginary.
        –H.L. MENCKEN

    4rdm2 in reply to Valerie. | May 12, 2022 at 5:38 pm

    I’d say the one most profoundly affected is the baby …

    randian in reply to Valerie. | May 12, 2022 at 6:13 pm

    I will believe the consternation over this leak is uniform when a clerk gets fired

    It’s pretty obvious one of the liberal justices ordered their clerk to leak, or leaked it themselves, not that anybody would admit it.

    Milhouse in reply to Valerie. | May 12, 2022 at 7:01 pm

    I read Roe v. Wade when it first came out in the Supreme Court Reporter, because a lawyer put the open book in front of me on my desk. It was the first document, and maybe the last, that dealt cleanly with all the rights involved in this fraught issue.

    It invented a “right” out of whole cloth, that nobody had ever heard of before, and that certainly did not exist when the ninth or the fourteenth amendments were ratified. And it relied on false statements and fraudulent history, such as the claim that in colonial America pre-quickening abortion had been lawful.

    In an imperfect world, Roe v. Wade does everything humanly possible under our form of government to minimize the number of abortions.

    OMG. I’d hate to see what it would take to maximize them, and how that would differ from what we got. Sixty million dead babies later — ten Holocausts — and you still say this?!

    the one person most profoundly affected (the mother)

    The one person most profoundly affected is the baby. And if the mother wants it dead then she can no longer speak for it, so it’s the state’s job to do so.

    The end result is that the State can never compel a woman to have an abortion,

    The state can never compel that anyway. It couldn’t do so before Roe, so how can Roe prevent it?

    Sending this issue to the States will result in some States, someday, deciding on a wholesale slaughter of babies.

    No, it will not. States do not have the authority to order anyone’s execution without due process of law. Mandatory abortion was unlawful before Roe and will remain so after Roe is gone.

      daniel_ream in reply to Milhouse. | May 12, 2022 at 9:18 pm

      States do not have the authority to order anyone’s execution without due process of law

      Valerie’s unspoken premise is that if we overturn Roe v. Wade, hundreds of thousands of women will abort their babies casually in free-abortion states. I’m not sure that’s much different from the current state of affairs, but even if it is, the problem there isn’t the law.

        daniel_ream in reply to daniel_ream. | May 12, 2022 at 9:19 pm

        And by “we”, I mean you all. Not my country.

        Milhouse in reply to daniel_ream. | May 12, 2022 at 9:48 pm

        No, her assertion is that some states will actually make abortion mandatory in certain conditions. And I don’t believe they can do that; or if they can, nothing in Roe stops them.

“I’m Shocked! Schocked! that there was a leak”
Wise Latina

The shared and exploited leaks by well-funded, broadcast, and staffed pro-abortion special and peculiar interests, coincides with diverse domestic, foreign, and transnational administrative oddities that beg the diversion.

Is Roberts still trying to talk them out of it?

    Lucifer Morningstar in reply to geronl. | May 12, 2022 at 7:50 pm

    Is Roberts still trying to talk them out of it?

    Yes, given the fact that Roberts doesn’t want to go down in the history books as being the “Chief Justice that allowed his court to overturn Roe. v. Wade I’m more than sure he’s desperately attempting to influence at least a couple of Associate Justices to change their votes.

JackinSilverSpring | May 12, 2022 at 4:04 pm

Roberts presumably launched an investigation to find the leaker. The Court does not have a whole lot of people with access to the draft. Why have we heard nothing about the leaker, or is Roberts’ investigation just smoke and mirrors?

    I said it a week ago. Roberts put the organization in charge of SC security to ‘investigate’ it, something that they are NOT trained, equipped, or organized to do, and they cannot request warrants or issue subpoenas.

    There’s only ~40-50 people with access to a draft like this.

    A rookie detective or FBI agent could crack this in a couple days.

    Roberts doesn’t WANT the leaker found.

      Milhouse in reply to Olinser. | May 12, 2022 at 7:08 pm

      Investigating this is the Marshall’s job. It’s up to her to call in the FBI if she feels she needs its help.

      Ironclaw in reply to Olinser. | May 12, 2022 at 7:25 pm

      There are 9 justices and 36 clerks who have access to that material. That’s not a very big pool of people to investigate. This should have taken a long weekend.

        txvet2 in reply to Ironclaw. | May 12, 2022 at 8:23 pm

        It does take a little while for the process to play out. I assume, or at least I would hope, that every one of the 45 is being interviewed under oath and their answers investigated. That could take a while.

        Milhouse in reply to Ironclaw. | May 12, 2022 at 9:51 pm

        There are more people who have access. Printing staff, office cleaners, and likely more. Remember that the copy that leaked seems to have been printed, not electronic. So it’s even possible that someone broke into an office and stole it, or that someone lost a copy and the “leaker” found it.

          Joe-dallas in reply to Milhouse. | May 13, 2022 at 10:16 am

          concur that it was likely a printed copy, ( or a pdf) that was subsequently printed.

          However, there was the second leak with more details on the status which only the 9 justices and the clerks have inside info. For that reason, I suspect the leak was either from a clerk or a justice. I discount any spouse of a justice since they would not have physical access to the document, though would have access to the thoughts and comments of a justice that may occur after work hours.

          Joe-dallas in reply to Milhouse. | May 13, 2022 at 10:19 am

          The other comment is it seems most likely to be a clerk from the liberal side since the leak was to Politicolo which leans heavily left. That being said, many of the conservative justices will hire clerks that lean left so that the can liberal point of view in their internal discussions. (on the flip side, the liberal justices would almost never hire a conservative clerk)

It should be noted that there should be rumors, and only rumors, concerning whether there are one or fifty draft opinions being circulated. If we’re upset about the leak of the Alito draft — and we are, or we should be — then we should be equally upset about leaks that there are or are not other drafts.

That’s my opinion. That said, I’m extremely hopeful that, while Roberts will vote against the opinion, he hasn’t drafted his own desired-to-be majority opinion allowing Roe to stand.

    txvet2 in reply to Michael. | May 12, 2022 at 8:24 pm

    It is curious that there doesn’t seem to be much interest in these rumors, but of course the difference is that they don’t involve an actual document, so it’s hard to pin down whether they’re coming from the court or just some reporter’s imagination.

Poor John Roberts: it looks like the Epstein tapes will be featured soon on a porn site near you, right next to Kim Kardasahian’s porn tape.

    henrybowman in reply to TheFineReport.com. | May 13, 2022 at 10:49 pm

    Let’s get the one of Roberts and Dolly the Sheep debuted and on the air ASAP, so we can finally dump his ass and end all this “I’m a conservative” kabuki at the Supreme Court.

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