What an Unprecedented Supreme Court Leak Says About the Future of Abortion—and About Precedent Itself

Jeannie Gersen in The New Yorker:

The Court Chamber inside the Pantheon-like building of the Supreme Court of the United States is adorned with marble friezes depicting ancient lawgivers, including Hammurabi, Moses, and Confucius. To begin each session of the Court, at ten o’clock in the morning, the marshal strikes a gavel and commands, “All rise!” The audience goes silent and obeys. The nine Justices, in dark robes, then emerge from behind a heavy velvet curtain to take their seats on the elevated mahogany bench, as the marshal announces, “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!” It is the closest thing we have, in the American civic sphere, to a papal audience.

The solemn ritual was supposed to have preceded the Supreme Court’s revelation from the bench of its decision in Dobbs v. Jackson Women’s Health Organization, the case about Mississippi’s ban on abortion after fifteen weeks of pregnancy. It still surely will, later this spring, but it will feel as if we’ve already been behind the curtain in Oz. On Monday, a leaked first-draft opinion by Justice Samuel Alito, writing for a majority, which was apparently circulated to all the Justices in February, was published by Politico. It states that the Court is overruling Roe v. Wade, which declared a constitutional right to an abortion, in 1973, and Planned Parenthood v. Casey, which reaffirmed Roe’s “central holding” under the Fourteenth Amendment’s due-process clause, in 1992.

The leak has launched abundant speculation about the leaker’s motives. Commentators have wondered whether leaking the draft was intended to corner a “squishy” conservative Justice into staying onboard with the majority or, alternatively, to create pressure to jump ship from the majority.

More here.