Editor’s note: This article has been updated.
In the face of what has been described as an “unprecedented” breach of confidentiality at the nation’s highest court, the University of Notre Dame on Tuesday convened a panel of U.S. Supreme Court scholars to talk through the potential ramifications of the leak of a draft opinion that could fundamentally alter the country’s abortion landscape.
Professor Vincent Phillip Munoz, director of the Center for Citizenship & Constitutional Government at Notre Dame, moderated Tuesday’s panel discussion about the leaked draft opinion in Dobbs v. Jackson, a case out of Mississippi that, if the draft opinion is to be believed, will overturn the landmark abortion rulings in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.
Munoz was joined in the discussion, “The Leak, the Supreme Court, and the Future of Abortion in America,” by Sherif Girgis, an associate professor of law at Notre Dame Law School and a clerk for Justice Samuel Alito during the 2018-2019 term; O. Carter Snead, a professor of law and concurrent professor of political science at Notre Dame Law School and the director of the de Nicola Center for Ethics and Culture; and John Yoo, a professor of law at the University of California, Berkeley, and a law clerk to Justice Clarence Thomas during the 1994-1995 term.
Although there was some initial question as to whether the draft opinion was authentic, Chief Justice John Roberts confirmed its authenticity in a statement released just moments before the Notre Dame panel began. But the chief justice cautioned that the opinion is not yet the official decision of the court or any of its members. It remains unclear how Roberts himself will vote in the case.
In a press release issued by the court, Roberts also announced that he had launched an investigation into the source of the leak. He said the “work of the Court will not be affected in any way” by the leak, and any intent to undermine the integrity of the court’s operations “will not succeed.”
Even so, public damage has already been done. The leak of the draft opinion has created a firestorm among politicians, political pundits, advocacy organizations and members of the public.
Those who support the draft’s holding — that the states, not the federal government, should craft abortion laws — praised the opinion as a win for the pro-life movement and for federalism, more generally. But pro-choice advocates are decrying the opinion as an assault on women’s bodily autonomy and the possible beginning of a judicial stripping away of rights.
The panelists, however, took a much more measured approach.
“It’s not surprising,” Snead said of the opinion’s holding and reasoning. “The arguments aren’t surprising, the arguments aren’t out of the mainstream — they track very closely the mainstream criticism of Roe and Casey.
“It’s a pretty modest opinion,” Snead continued, “and it makes the leak all the more shocking that a modest, predictable opinion would provoke this kind of shocking violation of norms.”
Girgis agreed that the holding in the draft opinion was not a surprise, especially to those who listened to the December oral arguments.
Both Girgis and Snead emphasized that contrary to a prevailing narrative, the draft opinion would not outlaw abortion. Rather, it would allow each state to craft its own abortion laws in keeping with principles of federalism.
Girgis also discredited the narrative that the decision in Dobbs could lead to the overturning of other unenumerated rights that have been upheld by the Supreme Court, including same-sex marriage.
“The court does not say that abortion has to be outlawed everywhere because the unborn are persons under the 14th Amendment. It does not say that there are no unenumerated rights and if it’s not written in the Constitution it’s not a constitutional right. It does not say that stare decisis counts for nothing when we think the decision is wrong — it takes kind of mainstream positions on each of those issues,” Girgis said. “… It says that we do have some unenumerated constitutional rights, but the test for figuring out what those are in order to make sure that judges don’t get to just play politicians is to look to whether the asserted right is deeply rooted in our history and traditions.”
But if the draft opinion is a “mainstream” piece of legal analysis, what was the purpose behind the leak? The panelists offered different theories.
Perhaps it was a conservative who wanted to hold the majority — reported by Politico to include Alito, as author, and justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — to their votes. Or maybe it was a liberal who wanted to galvanize voters to ensure Democrats keep control over Congress in this year’s midterms.
Yoo, who has worked in all three branches of government, said the leak had all the telltale signs of a political attack you might see in the executive or legislative branches. But the obvious problem with that, he said, is that the court is meant to be apolitical.
“I think, if this shows anything, it shows that critics of Roe who have said that Roe has politicized the Supreme Court and politicized our constitutional law are proven right by this leak itself,” Yoo said. “… There are people who leaked this opinion within the court who think Roe is more important as a political value than the institutional integrity of one of the three branches of government.”
The panelists also considered multiple theories as to who the leaker was. They questioned whether it could have been a clerk gone rogue, a clerk acting at the direction of a justice or even a justice.
In addition to the justices and their clerks, Girgis noted there are other people within the court who have access to opinions during the drafting and preparation process, such as judicial assistants. But the personal risk of being the leaker, he said, is “astronomical.”
As a former SCOTUS clerk who witnessed firsthand the importance of confidentiality on the court, Girgis said the leak hit him as a “gut punch.”
Regardless of the who or the why, perhaps the most important question following the leak is the what — that is, what will happen now that the draft opinion has become public?
The panelists were unanimous in their opinions that the leak likely would not prompt a justice to change his or her vote. Even so, they opined that it might be wise for the court to release the final opinion quickly, even if that means allowing dissents and concurrences to come later.
Munoz raised the specter of a physical threat to the justices if the opinion is not released soon. Those with strong opinions about the case might try to target a particular justice to force them to change their vote before the decision is final, he said.
From a political perspective, Yoo theorized that, if Roe is overturned as the draft opinion indicates, that ruling could bolster former President Donald Trump for a potential 2024 run.
Yoo noted that the GOP is sharply divided over Trump, but there is large consensus within the party that Roe should be overturned. Trump promised to appoint justices who would overturn Roe, Yoo said, and if that happens, his keeping that promise could potentially unify the party around him.
Snead, however, was less sure of the potential political impacts of the decision in Dobbs.
He noted that the six-week abortion ban in Texas, which the justices let stand, dominated national headlines over the last year. But now, Snead said, that Texas law has not proven to be a driving factor in the 2022 primaries.
Munoz, however, noted the November election is still several months away.
“Who knows what we’ll be talking about then,” he said.
If anything, Snead said the Dobbs decision could serve as an “education moment” for Americans, showing them “what Roe stood for and how extreme it was.” Similarly, Yoo said that if Roe is overturned, the court might be signaling that it no longer wants to be involved in political issues, instead leaving those issues to the states.
The full panel discussion is available online.