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Jeff Jacoby / May 4, 2022

Alito’s First Draft Is a Good One. But First Drafts Change.

The leak was no act of heroism. It was an egregious betrayal — perhaps even a crime — that must be investigated.

Near the end of their bombshell story reporting that the Supreme Court has voted to repudiate Roe v. Wade and Planned Parenthood v. Casey, Politico reporters Josh Gerstein and Alexander Ward quote the late Justice Ruth Bader Ginsburg, who took pride in the culture of tight-lipped confidentiality that has traditionally surrounded the high court’s deliberations.

“At the Supreme Court, those who know don’t talk, and those who talk don’t know,” Ginsburg often said.

But that hasn’t always been true. The leaking of a complete draft opinion while a case is still pending appears to be unprecedented, but this is not the first time that the court’s decision in a key case has been disclosed to journalists in advance. Indeed, the result in Roe v. Wade itself was leaked by a Supreme Court clerk to a reporter for Time magazine, which published a story — headlined “The Sexes: Abortion on Demand” — in an issue that hit the stands before the court’s explosive ruling came down.

The difference this time is the motivation of the leaker.

The clerk who gave Time a heads-up on the court’s intentions in Roe intended only to supply information on background that would be of help in reporting the story after the decision was public. Whoever leaked the draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health, the Mississippi abortion case, almost certainly wished to unleash a whirlwind of fury and political pressure. Was the goal to generate political blowback so intense that one or more justices might have second thoughts about jettisoning Roe? Was it to wreak havoc on the integrity of the court’s deliberations and thus undermine the authority of a decision that many liberals are dreading? In a tweet that went viral Monday night, reporter Ian Millhiser of Vox hailed “whoever the hero was within the Supreme Court” who decided to “burn this place down.”

But the leak was no act of heroism. It was an egregious betrayal — perhaps even a crime — that must be investigated. To catch, expose, and punish the leaker should be an urgent priority. At a time of such profound disenchantment with America’s political institutions, the Supreme Court has managed to retain at least a measure of public respect. We cannot afford to lose that last oasis of esteem, civility, and probity in the federal government. On Jan. 6, 2021, our nation experienced a humiliating and shocking assault on one of its oldest, noblest traditions: the peaceful transfer of power to leaders chosen by the voters. Are the deference and trust accorded to the Supreme Court next on the list of targets?

To anyone who has followed the legal and political arguments over Roe and its impact, nothing in the purported Alito draft opinion should come as a surprise.

Roe was egregiously wrong from the start,” he writes. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

All true. Even ardent defenders of abortion rights have lamented Roe‘s embitterment of American political life — by abruptly yanking abortion policy out of the political realm, it made the whole subject vastly more toxic. Roe “halted a political process that was moving in a reform direction,” said none other than Ginsburg in a 1992 lecture, and thereby “prolonged divisiveness and deferred stable settlement of the issue.” Far from settling the matter once and for all, Roe turned abortion into perhaps the most unsettled subject in American law and politics. Returning abortion policy to the process of democratic lawmaking will at long last detoxify it, as legislators in the various states work out for themselves whether and how it should be regulated. For all the hysteria on the left today, overturning Roe will not mean outlawing abortion across America tomorrow.

That said, Roe hasn’t been overruled. Dobbs hasn’t been decided. Two of the most important words in the Alito opinion published by Politico appear at the top of the first page: “1st draft.” Alito’s text is dated Feb. 10, and much about it may have changed since — including whether it still has majority support. “Deliberations on controversial cases have in the past been fluid,” Politico notes. “Justices … change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled.” All we have seen is a first draft. And first drafts, as even schoolchildren know, can be edited, revised, or torn up and rewritten.

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