“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.
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.DONATE
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