The Roberts Court, April 23, 2021
The Roberts Court, April 23, 2021 Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States

A draft of a major­i­ty opin­ion over­turn­ing the Unit­ed States Supreme Court’s land­mark Roe v. Wade deci­sion from 1973 and leaked to Politi­co is authen­tic, Chief Jus­tice John Roberts has admit­ted in a state­ment released by the Court.

Here’s the state­ment:

Yes­ter­day, a news orga­ni­za­tion pub­lished a copy of a draft opin­ion in a pend­ing case. Jus­tices cir­cu­late draft opin­ions inter­nal­ly as a rou­tine and essen­tial part of the Court’s con­fi­den­tial delib­er­a­tive work. Although the doc­u­ment described in yesterday’s reports is authen­tic, it does not rep­re­sent a deci­sion by the Court or the final posi­tion of any mem­ber on the issues in the case.

Chief Jus­tice John G. Roberts, Jr., pro­vid­ed the fol­low­ing statement:

To the extent this betray­al of the con­fi­dences of the Court was intend­ed to under­mine the integri­ty of our oper­a­tions, it will not suc­ceed. The work of the Court will not be affect­ed in any way.

We at the Court are blessed to have a work­force – per­ma­nent employ­ees and law clerks alike – intense­ly loy­al to the insti­tu­tion and ded­i­cat­ed to the rule of law. Court employ­ees have an exem­plary and impor­tant tra­di­tion of respect­ing the con­fi­den­tial­i­ty of the judi­cial process and uphold­ing the trust of the Court. This was a sin­gu­lar and egre­gious breach of that trust that is an affront to the Court and the com­mu­ni­ty of pub­lic ser­vants who work here.

I have direct­ed the Mar­shal of the Court to launch an inves­ti­ga­tion into the source of the leak.

The leak­er’s iden­ti­ty and moti­va­tions are unknown. Var­i­ous per­son­al­i­ties on the right wing have nev­er­the­less been engaged in furi­ous spec­u­la­tion and fin­ger point­ing since Politi­co pub­lished the draft last night, declar­ing with­out so much as a shred of evi­dence that one of Jus­tice Sonia Sotomay­or’s clerks must be the leak­er. The truth is we don’t know how the doc­u­ment end­ed up in Politi­co’s hands and it might not have come from a per­son opposed to the decision.

The right wing’s obses­sion with the leak itself, as opposed to the con­tent of the draft is delib­er­ate, Aaron Rupar says, because get­ting rid of Roe is an unpop­u­lar move and Repub­li­cans know it. “In short, while rail­ing against abor­tion rights is a good way to rile up the Repub­li­can base, it doesn’t res­onate with the gen­er­al pub­lic,” Rupar wrote in this morn­ing’s Pub­lic Notice, cit­ing polling from Data for Progress show­ing vot­er oppo­si­tion to a fed­er­al ban on abortion.

“They know they’re out of step with the major­i­ty of Amer­i­cans, and so they’re retreat­ing to safer ter­ri­to­ry — whin­ing about their per­ceived victimhood.”

In some quar­ters, grum­bling has also been heard about how this leak some­how dam­ages the integri­ty of rep­u­ta­tion of the Court. That is absurd. The Court has been destroy­ing its own cred­i­bil­i­ty for years, well before this leak happened.

The Court is not a neu­tral, non­par­ti­san, or “apo­lit­i­cal” insti­tu­tion. It is effec­tive­ly an arm of the Repub­li­can Par­ty and has been for years, as we saw in the appalling Bush v. Gore rul­ing back in 2000, and in many more cas­es since.

Pres­i­dent Joe Biden also com­ment­ed this morn­ing on the draft opin­ion, before Jus­tice John Roberts had con­firmed its authen­tic­i­ty, saying:

We do not know whether this draft is gen­uine, or whether it reflects the final deci­sion of the Court.

With that crit­i­cal caveat, I want to be clear on three points about the cas­es before the Supreme Court.

First, my admin­is­tra­tion argued strong­ly before the Court in defense of Roe v. Wade. We said that Roe is based on “a long line of prece­dent rec­og­niz­ing ‘the Four­teenth Amendment’s con­cept of per­son­al lib­er­ty’… against gov­ern­ment inter­fer­ence with intense­ly per­son­al deci­sions.” I believe that a woman’s right to choose is fun­da­men­tal, Roe has been the law of the land for almost fifty years, and basic fair­ness and the sta­bil­i­ty of our law demand that it not be overturned.

Sec­ond, short­ly after the enact­ment of Texas law SB 8 and oth­er laws restrict­ing women’s repro­duc­tive rights, I direct­ed my Gen­der Pol­i­cy Coun­cil and White House Counsel’s Office to pre­pare options for an Admin­is­tra­tion response to the con­tin­ued attack on abor­tion and repro­duc­tive rights, under a vari­ety of pos­si­ble out­comes in the cas­es pend­ing before the Supreme Court. We will be ready when any rul­ing is issued.

Third, if the Court does over­turn Roe, it will fall on our nation’s elect­ed offi­cials at all lev­els of gov­ern­ment to pro­tect a woman’s right to choose. And it will fall on vot­ers to elect pro-choice offi­cials this Novem­ber.  At the fed­er­al lev­el, we will need more pro-choice Sen­a­tors and a pro-choice major­i­ty in the House to adopt leg­is­la­tion that cod­i­fies Roe, which I will work to pass and sign into law.

With­in the past hour, Vice Pres­i­dent Kamala Har­ris released a statement:

The Unit­ed States Supreme Court has now con­firmed that the draft opin­ion that would over­turn Roe v. Wade is genuine.

Roe ensures a woman’s right to choose to have an abor­tion. It also, at its root, pro­tects the fun­da­men­tal right to pri­va­cy. What is clear is that oppo­nents of Roe want to pun­ish women and take away their rights to make deci­sions about their own bod­ies. Repub­li­can leg­is­la­tors in states across the coun­try are weaponiz­ing the use of the law against women.

The rights of all Amer­i­cans are at risk. If the right to pri­va­cy is weak­ened, every per­son could face a future in which the gov­ern­ment can poten­tial­ly inter­fere in the per­son­al deci­sions you make about your life. This is the time to fight for women and for our coun­try with every­thing we have.

The Vice Pres­i­dent is correct.

How pro­gres­sives respond to the Court’s plan to com­plete­ly get rid of Roe will be of mon­u­men­tal impor­tance. Although some com­men­ta­tors have remarked that Democ­rats ought to be able to pass a law cod­i­fy­ing Roe giv­en that they have a tri­fec­ta, the votes cur­rent­ly do not exist in the Sen­ate to change the cham­ber’s rules to allow major­i­ty rule to pre­vail. If every sen­a­tor who says that they sup­port repro­duc­tive rights were to vote to cre­ate an exemp­tion from the fil­i­buster for a bill to cod­i­fy Roe and then vote for that bill, it could reach Pres­i­dent Biden’s desk.

The House has already act­ed and passed such a bill. The Sen­ate has not.

Three female sen­a­tors have the pow­er to flip the Sen­ate dynam­ic to get Roe cod­i­fied: Ari­zon­a’s Kyrsten Sine­ma, a Demo­c­rat, Alaska’s Lisa Murkows­ki, a Repub­li­can, and Maine’s Susan Collins, also a Republican.

Each of them says they sup­port repro­duc­tive free­dom, but is opposed to abol­ish­ing or reform­ing the fil­i­buster, which gives Mitch McConnell & Co. the pow­er to con­trol the out­come of Sen­ate votes even when they’re in the minority.

With Collins and Murkows­ki on board, Democ­rats would­n’t even need to flip the trou­ble­some Joe Manchin (who is opposed to repro­duc­tive free­dom) to go along. They’d have fifty-one votes to pass a bill cod­i­fy­ing Roe … if those same fifty-one sen­a­tors were first will­ing to amend the rules of the Senate.

If only Collins (or con­verse­ly, only Murkows­ki) went along, Chuck Schumer could still get a bill through with Vice Pres­i­dent Har­ris’ tiebreak­ing vote. But he needs at least one Repub­li­can who sup­ports repro­duc­tive rights, plus Sine­ma, to coop­er­ate. And unfor­tu­nate­ly, all three of these sen­a­tors have proven to be very unreliable.

In the absence of such a break­through, the Sen­ate would be unable to pass a bill respond­ing to the Court’s deci­sion until the next Con­gress at the soonest.

Should vot­ers elect a big­ger Sen­ate Demo­c­ra­t­ic major­i­ty this autumn, the votes might exist in 2023 to reform or end the fil­i­buster and make progress on a host of fronts, includ­ing a response to the Court’s forth­com­ing decision.

Of course, any fed­er­al law pro­tect­ing repro­duc­tive free­dom would cer­tain­ly be chal­lenged and could end up get­ting struck down by this right wing Court, which is why it’s also impor­tant that Con­gress pass a bill to expand the size of the Court. The votes cur­rent­ly don’t exist for that either. Whether or not those votes will exist in the future will depend on what hap­pens in the midterms and in 2024.

In the mean­time, in a coun­try with­out Roe, women are going to suf­fer and die. If you’d like to con­tribute to orga­ni­za­tions that are on the front lines of help­ing ensure access to abor­tion care, Brid­get Read has com­piled a list of trust­ed orga­ni­za­tions you can donate to in states where access to care is at risk.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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