Barry Friedman is a professor at New York University School of Law and author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.” Dahlia Lithwick covers the courts for Slate. Stephen I. Vladeck is a professor at the University of Texas School of Law.
While everyone is busy gasping at the first leak of a draft opinion in modern Supreme Court history — one the chief justice has now confirmed is authentic — it is worth focusing on what brought us here. It is now clear that politics has triumphed over law. All that matters now is who can muster five votes, long-standing precedent (and confirmation hearing commitments to abide by them) be damned.
Lawyers know this, of course, in their hearts. As Justice William J. Brennan Jr. was fond of telling his clerks, the most important rule at the Supreme Court is the rule of five. Five votes declare the law, often on matters that are up for grabs in any other legal sense.
The problem is: There was nothing up for grabs about Roe v. Wade. The decision is almost 50 years old. It has summoned strong plurality support in the country since it was decided and now, in fact, has majority support. Countless people have structured their lives around it. While undercutting it to some extent, the Supreme Court itself reaffirmed it in 1992, in Planned Parenthood v. Casey.
All this leaked draft opinion is, then, is a naked power grab.
Here’s some history to put it in context. In 1987, in a case called Booth v. Maryland, the Supreme Court decided that in death penalty cases, prosecutors could not put on the witness stand family and friends of victims of homicide victims, because who was killed, and how many people loved that person, should not determine the fate of the killer. The vote was 5 to 4.
Four years later, in Payne v. Tennessee, the Supreme Court reversed itself, letting this evidence in. What changed? Nothing, except the membership of the court. In an outraged dissent, Justice Thurgood Marshall wrote, “Power, not reason, is the new currency of this Court’s decisionmaking. … Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”
That’s what is about to happen in Dobbs v. Jackson Women’s Health Organization — a Mississippi abortion case before the court — assuming the draft opinion remains substantially the same when it is handed down. The facts supporting Roe and Casey aren’t different; the law that governs the case has not changed or proved unworkable. Yes, there are many people who disagree with the law, albeit far from a majority of the country. But the minority manipulated the system of appointing Supreme Court justices, willing to do whatever it took to get the votes to overrule Roe. What happened next is not a change in the rectitude of the legal principles but in the identity of those who articulated them.
It was a decades-long project that happened slowly until it happened quickly. Time after time, those opposed to Roe failed in their attempts to seat jurists who would overturn it, because appointee after appointee — Sandra Day O’Connor, Anthony M. Kennedy, David Souter, even Chief Justice John G. Roberts Jr. — failed to pull the ripcord when the moment arrived. So, when Justice Antonin Scalia died while Barack Obama was president, then-Senate Majority Leader Mitch McConnell (R-Ky.) took the truly unprecedented step of sitting on a nomination for months, until Donald Trump was elected and Neil M. Gorsuch was named to the court. Then, the Republican right, again ruling without a majority of the country in support, got Brett M. Kavanaugh through the Senate. And finally, Amy Coney Barrett apparently was the straw that may break Roe’s back, confirmed mere days before the 2020 election, after voting had already begun. If, as Politico’s reporting suggests, this result in Dobbs is 5 to 4, it was only possible because of each and all of these maneuvers. Do not mistake principled decision-making for what in reality is the opportunistic and intensely partisan manipulation of circumstance.
So Roe will fall. Countless women will have their lives irreparably altered. Efforts to dress up this opinion as sober constitutional and historical reflection fall flat precisely because of the sneering contempt shown for both Roe and the many, many judges who left it undisturbed. This is a political opinion from a political court, one that doesn’t pretend to be anything else.
Some will say that is how it should be. That politics, and not law, should decide this issue. That is certainly the conclusion reached by Justice Samuel A. Alito Jr. Fine. But let’s call it what it is: naked power, without the thinnest veneer of a black robe.
Of course, what politics gives, politics takes away.
Should this leaked opinion stand, the future of reproductive freedom will depend on voters. A lot of politicians, especially in the South, have made careers lambasting Roe. That was easy when their words, and even their votes, did not matter — because if they swung at abortion too hard, the Supreme Court could be counted on to rely on Roe and strike it down. Now, they have no cover. They have to put their futures where their mouths are. They can vote to criminalize abortion, and they will then see whether the voters are with them. There is federal legislation that would codify the protections of Roe into law. That, too, now lies with voters.
For years, the country’s view of abortion has stood relatively still. A majority of voters favor abortion being legal in some circumstances, and a small minority favor criminalizing it in all circumstances. We shall see whether politicians find the middle or go off the deep end and pay for it.
In the meantime, though, don’t delude yourself. Yes, the leak was unprecedented. But so, too, is what the Supreme Court is doing. Power means that rules and norms and conventions of trust within the court have become immaterial, just as the lives and health of more than half the population have been rendered immaterial. The Emperor of Law has had no clothing on for a good, long time. With the leak, this reality is increasingly apparent to us all.