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ISU scholar: Leaked abortion draft ruling is 'really quite bad for the court’s legitimacy'

Associate Justice Samuel Alito
Erin Schaff
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Pool New York Times/AP
Associate Justice Samuel Alito, seen here in 2021.

It’s not unusual for the country to collectively pause to digest a big Supreme Court ruling on a major social issue — like abortion. What was different this time is that it wasn’t a ruling. It was a draft of a ruling, which was leaked.

To help understand the significance of that leak and what it says about how the Supreme Court operates and its conservative shift, WGLT’s Sarah Nardi turned to Meghan Leonard, an associate professor at Illinois State University who has studied the courts. Leonard described the situation as unprecedented.

WGLT: So how weird is this that this draft leaked?

Leonard: It is completely unprecedented. Of course, the story is not the leak. But the story of the leak just makes the whole thing far more intriguing.

There have been bits and pieces that have come out before, maybe about what the court is going to decide the next day. But never a full draft opinion. Never ever like this. So wholly unprecedented. And, you know, the Chief Justice has already said that they are starting an investigation. And what was leaked was, in fact, an authentic draft.

Were you surprised by anything that you read in that draft? Or, is it what you’d expect of a draft opinion from Samuel Alito?

Meghan Leonard portait
Illinois State University
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Meghan Leonard, an associate professor at Illinois State University who has studied the courts.

I think that's what we would expect from Justice Alito. Because it's dated in February, it strikes me as an early draft. And in an early draft, a justice is going to go for it. They're going to put out as much as they want to say. And then through that iterative process of responses from the other justices, and new drafts and responses, the draft kind of hones in on what the justices want to focus on. And so this process is exactly how it generally works.

And I think with Justice Alito giving what we might call legal shout-outs to Justice Thomas, with statements about abortion and African American children, and with Justice Coney Barrett, and statements about safe haven laws … we see very much that Justice Alito was using this version of the opinion to try to maintain whatever majority he had.

It seems like it's a five-justice majority. But we don't know for certain that that's the case.

It would stand to reason that the conservative wing of the Supreme Court would likely support this opinion. But it sounds like you're saying that that they wouldn't necessarily?

It is very true that there are five conservative justices on the court that would support this. Chief Justice Roberts, I think, would support the outcome. But he's much more leery of overturning precedent, and overturning a precedent as important and well known and long held as Roe.

And so if this is a five-justice majority, Justice Thomas would have assigned the opinion to Alito. And so in choosing Alito, he was choosing an ideological ally to write that opinion, but also a justice with a lot of experience to write the opinion. So everything about what this opinion looks like and how we got to this process — other than the leak — makes perfect sense to those who study the interior workings of the court.

When it comes to discussions and debates about abortion, so much of it is ideological. But this opinion hinges on a constitutional issue. What is the argument for overturning Roe v. Wade as it appears in this opinion?

The opinion is 90 pages or so. And so I'm going to try to summarize that in a very short period of time.

But basically what Justice Alito is saying is that there isn't a historical right to abortion. The right to abortion is also not written into the Constitution. So without the words in the Constitution, and that historical protection of abortion rights combined, we have to read the Constitution as not protecting the right to abortion. In other words, Roe and Casey, the case that came after it, were wholly wrongly decided.

That I think is a bit of a specious argument because there's lots of rights that are protected by the Constitution, right, that historically were not preserved … but certainly that's the argument that Justice Alito is making.

We are in a time where people are concerned about the growing political nature of the Supreme Court and of Supreme Court appointments. Is this kind of an outgrowth of that — that this incredibly important decision, someone decided that this is something that needed to be leaked?

I think it is an outgrowth of that, though certainly the court has been a political institution since its founding. It has gone back and forth ideologically on what the Constitution means in line with the justices who sat on the court. For example, the justices in the 1920s really just wholly, radically reframed what they thought the Constitution meant, and then it changed again and in the 1930s.

So, to that extent, there hasn't been a lot of difference in terms of this as a newly political court. But I think in terms of the coverage of the political nature of the nomination and confirmation hearings, the refusal to have a confirmation hearing for Merrick Garland, all of that is sort of moving towards a court that is seen as more political in a way that it can't survive.

It survived Bush v. Gore. And between the Kavanaugh hearings and Garland and now this leak, this is really, really quite bad for the court’s legitimacy. We don't know how bad it will be. But it's the worst I've ever seen in terms of something that could hurt the court's legitimacy.

Assuming that this leaked opinion is fairly representative of the opinion that is ultimately passed down, what's next for the Supreme Court?

If this is the opinion, or at least something close to it, this is just an absolutely terrible day for abortion rights and abortion access. And what the court looks like in the future is … really what Justice Alito is saying is, this goes to the states. And we know that lots of states have moved to restrict abortion access.

And then there's a number of states that, should this opinion or something very similar to it become the opinion that the court hands down, there's something like 13 states which would automatically have what we call trigger laws, or full bans on abortion.

Illinois is not in that category. And certainly abortion access would still exist in Illinois, unless there was some type of national movement from Congress against abortion. The problem with Illinois, though, is it will be a safe haven state, and Missouri and Indiana and Iowa and all of the people seeking abortions from those states will be coming to Illinois. And so for our residents, it will be harder to get appointments. There'll be longer wait times. And so it will not immediately affect access to abortion in Illinois. But over time, even in a state that has such strong protections for abortion rights, there'll be negative effects.

Roe v. Wade has been really the defining issue of my lifetime. If this is off their docket, so to speak, does the court have a chance of kind of re-centering itself and becoming more what we understand it to be, as an apolitical entity?

There is a chance that they would do that. But everything about Justice Alito’s opinion suggests that's not the case. Justice Alito’s opinion is fairly radical in his statement that anything that wasn't really historically protected can not be protected by the Constitution. And so the court could reset and move back to the center. But it seems like next on the docket will be taking down protections for the LGBTQ community, taking down the right to privacy, which means the right to marry. It means different rights that protect that are protected under the Fourth Amendment. There were ways that the court could handle this, that would make legal scholars confident that they're just trying to wipe their hands of the abortion issue and move on. But the Alito opinion suggests that the court will continue down this somewhat radically conservative path.

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