WASHINGTON – The nine Supreme Court justices will gather privately Thursday for their first scheduled meeting since the leak of a draft opinion ruling Roe v. would override Wade and severely limit abortion rights in about half the states.
Meeting in the judges’ private, wood-panelled conference room could be a tense affair in an environment known for its decency. No one attends except the judges, and the youngest among them, Judge Amy Coney Barrett, is responsible for taking notes.
Thursday’s conference comes at a particularly sensitive time as the future of abortion rights is at stake and an investigation is underway to try to find the source of the leak.
Chief Justice John Roberts last week confirmed the authenticity of Politico’s revealed opinion by ordering the court marshal to conduct an inquiry.
Roberts stressed that the draft, authored by Judge Samuel Alito and distributed in February, may not be the court’s final word. Supreme Court decisions are not final until they are formally rendered, and in some cases the results have changed between the time judges first voted shortly after the arguments and the official announcement of the decisions.
That goes for a major 1992 abortion ruling now under threat, Planned Parenthood v. Casey, when Justice Anthony Kennedy initially indicated he would be part of a majority to reverse Roe, but later was among five judges to do so A woman’s fundamental right to choose abortion, which the court first established in Rogen in 1973.
Kennedy met privately with Justices Sandra Day O’Connor and David Souter to work out a common opinion without giving any indication to the public or other judges as to what was going on.
“I think it’s tradition and decency for everyone to correspond in writing about things that are out there,” said Megan Wold, a former legal clerk at Alito. “But at the same time, nothing prevents a judge from picking up the phone to call, or visiting anyone else in the chambers.”
A major shift in the current abortion case seems less likely, at least in part because of the leak, abortion law experts and people on both sides of the issue said.
“I don’t think the rough outlines will change much. To the extent that the leak is significant, it will make major changes unlikely,” said Mary Ziegler, a research fellow in the history of abortion at Florida State University Law School.
Sherif Gergis, a University of Notre Dame law professor who once served as Alito’s legal secretary, agreed. “I’ll be surprised if it changes a lot,” said Gergis.
It’s not clear who leaked the opinion or for what purpose. But Alito’s writing means there were at least five votes to overrule Roe and Casey in December, shortly after the court heard arguments about a Mississippi law that would ban abortions after 15 weeks of pregnancy.
Based on their questions at arguments, Justice Clarence Thomas and former President Donald Trump’s three nominees, Justices Neil Gorsuch, Brett Kavanaugh and Barrett, appeared the most likely to join Alito.
Roberts appeared most inclined among conservatives to avoid a decision to overturn the landmark abortion decisions, but his questions suggested he would at least vote to uphold the Mississippi law. Even that outcome would dramatically undermine abortion rights and invite states to impose ever-tighter limits.
If Roberts, who often prefers incremental steps to preserve the court’s legitimacy, was to prevent the court from overruling Roe and Casey, he would only have to get another colleague’s vote. That would be enough to deprive Alito of the majority.
Liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor are expected to disagree with both findings. But no dissent, no separate opinion from Roberts, or even a revised draft majority opinion was circulated among the judges, Politico reported.
Majority opinions often change in response to friendly suggestions and harsh criticism. The judges consider the internal back and forth to be an essential part of their job.
Justice Ruth Bader Ginsburg noted that targeted criticism from her friend and ideological opponent, Justice Antonin Scalia, bolstered her opinion. Scalia died in 2016; Ginsburg, four years later.
The lack of dissenting opinions surprised some former legal clerks at the judges, although Wold said it’s also true that larger, more difficult cases traditionally take longer.
Several former employees also said they expect the leak to be discussed at Thursday’s weekly session, where judges usually finalize their opinions on cases they’ve heard and select cases to hear in the coming months should be. Spring is usually a tense time in court, with important decisions coming up that often reveal marked divisions and sometimes elicit harsh words.
“I’d be shocked if it doesn’t come up,” Wold said, adding that given what happened, the court would likely take extra precautions if drafts were circulated in the future, including restricting who could have access to them Has.
Kent Greenfield, a Boston University law professor who spent a year as a clerk at Souter, also speculated that the leak would be on the table Thursday. “Roberts is in a complete bind. He has to deal with it, but it doesn’t seem to me that he has many options,” Greenfield said.
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https://www.local10.com/news/politics/2022/05/11/justices-to-meet-for-1st-time-since-leak-of-draft-roe-ruling/ Judges are meeting for the first time since the Roe draft decision was leaked