When I first started reading Justice Samuel Alito’s draft Dobbs opinion (which Chief Justice John Roberts has confirmed as authentic), my initial thoughts were that this was everything conservatives could have hoped for — an utter repudiation of the weak constitutional arguments in Roe and a rejection of the majority opinion in Casey affirming a bad decision on stare decisis grounds. But then, a combination of my lifetime as a Jets fan and PTSD from the Obamacare decision set in, and a dreadful thought came over me: what if one of the votes to overturn Roe has gone wobbly and this draft was released by an angry and disillusioned conservative rather than a resistance liberal?
The truth is, there has been educated speculation on who the leaker might be, and what it might mean for the future of Roe. But this was a draft that was circulated two months ago and the final decision may be nearly two months away, so, it’s hard to say. Another scenario is that at the initial vote following oral arguments, there was a majority at least open to overturning Roe, but not 100 percent committed. So, it was decided that Alito would write an opinion making his strongest case possible for going all the way, so anybody undecided could have a chance to weigh in. But we don’t know.
So, while the leak itself was egregious — as stated in our editorial — and the significance of the act should not be downplayed, at the same time, I’m not sure it ultimately changes the calculation of what we can expect once the final decision is in.
Put another way, were we having a debate today about what the Supreme Court is likely to do about Roe in the absence of a leak, the consensus would probably be something close to: There’s a good chance it will be overturned, there’s a chance a conservative will go wobbly, and Roberts is likely seeking a way to uphold Mississippi’s law banning most abortions after 15-weeks without fully overturning Roe. And I think that’s more or less where we still are.