History on the right to life was made Monday night in more ways than one.
Someone at the Supreme Court leaked to the press a draft version of a majority opinion in the case of Dobbs v. Jackson Women’s Health Organization.
The nearly 100-page opinion, drafted by Justice Samuel Alito, says at one point that the high court’s rulings in two previous cases allowing abortion on demand “must be overruled.”—Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
A leak of this magnitude, nearly two months before the anticipated release of the Supreme Court’s opinion in Dobbs, is unprecedented.
Carrie Campbell Severino, president of Judicial Crisis Network, joins this special episode of “The Daily Signal Podcast” to discuss how and why the draft opinion was leaked, and how quickly the justices may decide to release their final opinion.
Listen to the podcast below, or read the lightly edited transcript:
Virginia Allen: According to a leaked Supreme Court draft opinion, it appears that the Supreme Court is poised to overturn Roe v. Wade. And here with us to talk about this unprecedented breach at the Supreme Court and this opinion is Carrie Campbell Severino. She is president of Judicial Crisis Network, and Carrie is also the coauthor of “Justice on Trial: The Kavanaugh Confirmation and the Future of the Court.” Carrie, thank you so much for being here.
Carrie Campbell Severino: Great to be here. Thanks for having me.
Allen: So what can you tell us about this leaked draft opinion?
Severino: Well, I could tell you the idea that there would be a leaked draft opinion in the first place is some of the most shocking news of this. I never would’ve expected to see a leak like this with the level of security and the level of confidence that justices have in their clerks …
Think about it. Bush v. Gore didn’t have a leak. You know, I mean, all of these. Heller v. the United States, that restored Second Amendment rights, didn’t have a leak. There wasn’t a leak like this for the Obamacare case.
This is really unprecedented to have a draft opinion out like this. But I think what this shows is this is a continued part of the pressure campaign that is being waged against justices on the court, whether it was attacks on [Justice Brett] Kavanaugh during his confirmation, on Justice [Amy Coney] Barrett for her religion, on Justice [Clarence] Thomas for his wife’s activities.
This is something that is a regular pattern, and we’re just seeing it getting worse because even more institutions are being undermined in the process.
Allen: And you know the courts well. You actually clerked yourself for Supreme Court Justice Clarence Thomas. Who exactly has access to court opinions and how tight is the security of those documents?
Severino: When I was there, and obviously things had to change during 2020 with people working from home, but you weren’t allowed to take anything out of the building that would be something like this.
The only thing you could take out was maybe a brief that had been filed in the court publicly so it was available everywhere online anyway. So I could read briefs at home, but I could never have taken a draft opinion out of the building whatsoever. I don’t even think we would’ve printed them. …
So this is really extraordinary to see this happen. It’s really just the justices. And then each of them has four clerks. And that’s pretty much the universe there.
I mean, I think some people have speculated you could have some other staff member at the court come in and steal this. But honestly, I think most people are assuming on both right and the left that this is probably the clerk of one of the liberal justices who was hoping that maybe the pressure campaign …
And now we’re seeing, of course, there were protests at the court last night, we’re going to see continued pressure, potentially threats of violence. Who knows? …
And the outpouring of frustration from the left of this opinion might be enough to maybe change both, maybe stop the opinion. And I think that was … first of all, a miscalculation because I don’t think that the justices in the majority are going to … allow themselves to be bullied in that way.
But I also think that’s a horrible step in the politicization of the court, for someone within the court to be trying to manipulate it in that way.
Allen: Yeah. Well, and Chief Justice John Roberts, he’s already ordered an investigation to look into what happened, how this happened. What do we know right now about the why behind why this was leaked and the how, I mean, how can something like this actually happen?
Severino: Unfortunately, we only have speculation on that. I mean, the how, it seems it was a printed document. It seems it was then scanned and given to Politico. And so I think some people have said that printers would have a unique mark on the document. They might be able to trace what printer it came from and use that in their investigation process.
In terms of the why, I think we don’t even know who did it, so it’s hard to speculate, but a lot of people are assuming this is something that a liberal clerk wanted to make this public to create outside pressure.
And unfortunately, what we’ve seen is in the last decade or so that the court has telegraphed at times that it is open to this public pressure. When you read about cases like the Obamacare case, that famously there was reporting that showed that the chief justice had originally voted the other way and switched his vote. And similar reporting came out after the census case.
Now, the difference in this case is the chief justice, who in both of those cases is the one who’s alleged to have switched as a result of outside public pressure, appears to not have been in the majority on this case.
And that’s not terribly surprising either for anyone who watched or listened to the arguments. In December it did seem like the chief justice was trying to find some way to split the baby, effectively, and uphold the Mississippi law while somehow not disturbing Roe v. Wade.
It’s an outcome that neither side of the case thought was actually possible. Even the people trying to impose a law said, “Yeah, there’s no way for you to let this law pass and uphold Roe.” So I’m not sure. That strategy doesn’t seem sensible to me, but it’s just such an outrageous leak that there is no good motive here to go to. I think we’ll have to find out who it is and maybe that will give us some insight.
Allen: And how likely do you think it is that the leaker will be identified? And then if that individual is, what will the consequences be?
Severino: I’m optimistic that they will find the person. The consequences, again, it’s very unprecedented so it’s hard to know. I would imagine, at a minimum, you’re going to lose your job here, and this is something that would be a black mark on that person in terms of, is this someone you could really trust going forward, indefinitely?
Some people have suggested that, particularly for violation in a role of trust like this, that would make someone potentially either be disbarred or disqualified from being admitted to the bar, because not all clerks are necessarily members of the bar yet. They often have just come shortly out of law school. So, I think all of those are real possibilities.
Unfortunately, there’s some people, particularly some of the radical left-wing dark money groups, that seem to want to make this person a hero. And so I think you’ll have some people celebrating it, this destructive act that’s really undermining the institution of the court, as somehow a wonderful contribution to, I don’t know … Certainly not a good contribution to public discourse, but that somehow that the ends would justify the means when it comes to advancing their liberal policy goals.
Allen: As someone who has clerked in the Supreme Court before, what’s happening right now in the Supreme Court? What are the conversations that the justices are having among themselves and with their clerks?
Severino: Oh, wow. I mean, that is very hard to predict because I just, I can’t imagine. They must be just so outraged right now. I think particularly the chief who was very firm when I was a clerk with making sure the clerks understood the significance of the duties they had to protect the institution of the court, to protect the confidences they were being entrusted with—he just must be outraged because this is yet another event making his court look so political and treating the judges as politicians that we’ve seen in a tremendous decrease in the prestige of the court over the past decade. And I think this is just another blow to that.
So I’m sure the chief justice is hopping mad. And that’s why he’s trying to make sure that the person who leaked this opinion is found and can suffer the consequences.
Allen: Yeah. Well, as we’ve talked about, this is completely unprecedented. We’ve never seen a full draft opinion leaked months really before when that ruling was supposed to come out. That draft opinion was nearly 100 pages long. And Carrie, I know you’ve had a chance to read through that. What are your thoughts on this draft opinion from Justice Samuel Alito?
Severino: The opinion is just a tour de force of addressing these areas of the law in a way that is clear and just straightforward. … You know, it’s interesting as you’re reading through it and obviously everyone’s trying to read through it as fast as possible. It’s kind of going, “OK, let me pick out the flashy line, or the quoting line.” He clearly wasn’t writing this … to get rhetorical applause. He was writing it to make a clear, persuasive case. And I think that is so refreshing. He’s not trying to come up with cute terms of phrase.
He isn’t trying to hide the ball, which, unfortunately, happens in all too many opinions, trying to cover up for the fact that the court’s doing something that it maybe doesn’t want to own up to. He just said straight out, “We are overturning Roe v. Wade and Planned Parenthood v. Casey must be overturned,” didn’t try to pretend to have it both ways.
He addressed both how vacuous the reasoning in Casey was. Casey, of course, is the decision that upheld Roe and yet, at the same time, rewrote that whole decision. There’s a classic case of the type of hiding the ball and obfuscation that happens in these decisions. It claims to be upholding a case and then simultaneously rewrites the entire basis of the case.
And he pointed out how Casey never even analyzed whether Roe was actually good precedent and well founded before deciding it was going to allegedly follow it and then of course rewrite it.
And then he goes into the history and it’s just beyond clear that nothing in the constitutional text, nothing in the implications of any amendment, nothing in American history could possibly be deployed to deport a right to abortion.
It simply is not there at any possible grounds in the Constitution. And he went into excruciating detail on that and then addressed the issue that … I think the other lie that’s being told about this—one is that somehow people are trying to make the argument that abortion has a long history in America. And that is simply not true.
By the 20th century, every single state had outlawed abortion, but when the 14th Amendment was passed, which is the most commonplace in the Constitution, people try to find this right, three-quarters of the states had outlawed abortion at all stages. So there’s no history for this.
But, you know, even if you say, “OK, maybe we should just follow the decision anyway, because a lot of water’s under the bridge,” he applied the standard factors that a court looks at when deciding whether you should follow erroneous precedent.
And Roe v. Wade fails every single one in spectacular fashion, whether it’s the soundness of the underlying reasoning to the impact it’s had on the courts. He talks about how difficult it is for courts to apply these decisions, the way that they have been misused and contradictory and basically are made up types of new standards that only apply in the abortion area, and how damaging it’s been to our political process as well.
That’s kind of evidence this maybe would not be the panacea that Planned Parenthood seemed to think it was going to be. That if the court just rules on this, this issue’s going to go away.
I think the good news is the issue now is going to go back to the American people and its representatives and that’s where it belonged all along. So it’s still going to be a debate in this country, but it won’t be a debate that gets settled by five unelected judges.
It’s going to be a debate that’s going to happen in 50 different states. It’s going to happen within the Congress and it’s going to happen in all our state legislatures. And then the American people can have a much more nuanced and a much more representative approach to how this is done rather than a one-size-fits-all solution handed down from imperial judges.
Allen: Yeah, no, really. The road is just beginning as far as watching these various pro-life debates unfold in states all across the country. It’s going to be really fascinating to watch that.
As far as where the opinion stands right now. So obviously, this draft has been leaked. It looks like the court is set to overturn Roe v. Wade. Originally, we thought that this opinion was going to come out at the end of June. Is that going to be sped up now? Or could we expect something as soon as the next couple of weeks?
Severino: Yeah. You know, obviously, everyone assumes a big opinion like this could come out at the last day of the term. I think that’s probably what it was on track for before.
At this point, a lot of people have been talking about how leaving this decision out there hanging just increases the improper pressure on the court, I think draws attention and focus on the impropriety …
I think the best thing for the court to do is simply to release the opinion. The great news is the opinion’s outstanding. It’s thorough. I don’t think it needs additional work whatsoever. And that’s pretty typical of first draft opinions. You don’t circulate it to the other justices unless it’s very well researched and edited within chambers.
So I think the best route for the court would be to simply swiftly release this. Even if it means waiting for the dissent and the potential concurrences to come out at a later date, I think it would be better to have this decision finalized now that it’s out there in the public. Because I think the longer that debate is out there, the more damage is done to the institutional reputation of the court.
Allen: And what we have seen from the far left is that right away, they have begun calling for court-packing. If Roe v. Wade is indeed overturned, we get that final ruling, what do you think we can expect from the left?
Severino: Well, what we have seen is, yeah, they’re calling for court-packing. They’re calling for the elimination of the filibuster in order to pass a law codifying Roe and frankly, whatever other liberal wish list items they can come up with.
But they’re willing to sort of canonize whoever it is that leaked this opinion as if this was some kind of wonderful, patriotic act.
I think you’re seeing the left is more and more willing to undermine and destroy any institution that gets in its way. We have people who are saying things like, “The Constitution itself is trash.” That was said by one of the board members of the liberal dark money group that was the main group advocating for our next Supreme Court justice, Ketanji Brown Jackson. …
You have people who are willing to scrap the Supreme Court, who are willing to do whatever it takes to change that institution, not because of concerns about the actual institution [such as] “Hey, maybe it needs more people. It needs to focus on, have a broader base of people working on.” There’s not even an attempt to give surface arguments like that. It’s just simply, “We want our political way and we want it now. And if that means we have to bulldoze the Constitution, if that means we have to bulldoze the Supreme Court, if that means we have to bulldoze the Congress, that’s what we will do.”
And I think that is a bad turn in an already unfortunately very contentious political environment that we are in right now. I hope that the court does everything it can to push back on those “take no prisoners” kind of approaches to trying to politicize every possible issue here.
Allen: Carrie Campbell Severino, Judicial Crisis Network president. You can follow all of Carrie’s reporting, her updates at @JCNSeverino on Twitter. Carrie, thank you so much for your time today. We really appreciate it.
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