A report suggests that there are five votes to overturn Roe and Casey.
Politico has a report up tonight with a leaked copy of an apparent draft Supreme Court decision written by Justice Samuel Alito that overturns Roe v. Wade and Planned Parenthood v. Casey. According to the report, in a vote shortly after oral arguments in Dobbs v. Jackson Women’s Health Organization last December, justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett voted with Alito in favor of overturning the Court’s precedents, and that tally supposedly remains unchanged. The report suggests that it’s unclear how Chief Justice John Roberts will vote, or whether he’s made up his mind at all.
We certainly should be skeptical of big leaks such as this one, not to mention reports that are entirely anonymously sourced — and doubly so when the topic is as radioactive as the possible overturning of the Court’s abortion jurisprudence. What’s more, even if the report is entirely correct, a lot can still change between now and an actual ruling. Nothing is final until the real decision is out; votes can still change, new opinions can still be drafted.
But if Politico is correct on the whole — and it’s notable that the full text of the supposed draft decision is available in the article — it’s worth considering why this leak happened, and why it happened now.
In my view, if it’s accurate, the information in the piece almost certainly came from those in the Court who support Roe and who are doing whatever they can to prevent the justices from going through with overturning it. On a small scale, that might mean an effort to undermine the legitimacy of the eventual decision — or it might be an attempt to stir up a media and activist firestorm so enormous that it scares off one or more justices from upholding the Mississippi abortion law at stake in Dobbs and, more important, from striking down Roe and Casey.
The justices should not allow them to get away with it. If anything, this effort to undermine them should harden their resolve to do what the Court ought to have done long ago.