A mysteriously leaked document shocked political life across the United States on Monday night, as Politico published a draft majority opinion from the U.S. Supreme Court that would overturn the landmark 1973 abortion-rights decision, Roe v. Wade. The Court’s final decision isn’t expected until late June or early July, but Chief Justice John Roberts has confirmed the authenticity of the draft, which implies an imminent ruling that could lead to half of all American states banning or restricting access to abortion. The Democratic Party and progressive activists are now planning to capitalize on opposition to this outcome in the fall’s midterm elections, when the predominantly anti-abortion Republican Party is expected to retake control of the U.S. Congress. Meanwhile, the leak is intensifying public debates about the Supreme Court’s institutional legitimacy. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations,” Roberts said in a statement, “it will not succeed.” Of course, we don’t yet know the intention. But what is the effect?

Christopher W. Schmidt is a professor at the Chicago-Kent College of Law, a co-director of the school’s Institute on the Supreme Court of the United States, and the author of an upcoming book on the Court’s relationship with the American public over the last century. According to Schmidt, the leak is unprecedented, and the intense national attention it’s focusing on the Court is pivotal. How it ends up affecting perceptions of the Court’s legitimacy over the long term, Schmidt says, will depend on the political response, including whether Democrats focus on winning elections and securing more judicial appointments or start trying to pack the Court and impeach justices. There may be ways the Court can reset its relationship with the American public over the coming years, but, to Schmidt, that relationship is in all events entering a new, unfamiliar, and unpredictable phase.


Graham Vyse: Has anything like this happened before?

Christopher W. Schmidt: There have been leaks from the Supreme Court before, but they’re remarkably rare. On occasion, there’s been reporting about Court opinions before their release. But there’s never been a leak like this. There’s certainly never been a draft opinion leaked prior to the final opinion’s release.

Vyse: What’s the function of a draft opinion?

Schmidt: It’s a preliminary draft of the majority opinion of the Court, in this case authored by Justice Samuel Alito. We don’t know who was in the majority with him, but Politico’s reporting indicates that it was Justices Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch. The other justices get to draft opinions and provide comments to the author, and then the draft will go through revisions, while the dissenting justices write their opinions.

Vyse: What exactly does Alito say in this draft?

Schmidt: He makes pretty standard legal arguments against abortion, which go back to the original dissenters in Roe v. Wade in 1973. He made a point of saying there’s no right to abortion in the text of the U.S. Constitution and that it was read into the Constitution as an unenumerated fundamental right. To recognize an unenumerated fundamental right, he says, a court looks to history—to what kind of historical practices are deeply rooted in our historical traditions. He concludes that the right to abortion isn’t deeply rooted in American traditions, pointing to historical instances of regulating abortion, going back to the early years of the country.

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