Supreme Court Chief Justice John Roberts admits that leaked Alito draft is authentic

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.