Pod Save America - What the SCOTUS leak could mean for abortion (Strict Scrutiny Emergency Episode)

Episode Date: May 3, 2022

Kate, Leah and Melissa get together for an emergency episode of Strict Scrutiny to discuss a leaked draft Supreme Court opinion that indicates the justices are prepared to overrule the decisions protecting and reaffirming the constitutional right to an abortion.Donate now at votesaveamerica.com/roe to split your contribution between more than 80 abortion funds, and listen to Strict Scrutiny every Tuesday for analysis on upcoming Supreme Court decisions at https://crooked.com/podcast-series/strict-scrutiny/.

Hey, everyone. In light of the leaked Supreme Court decision to overturn Roe v. Wade, we thought it was important to share a special episode of Cricket's legal podcast, Strict Scrutiny, here in the Pod Save America feed. In a few minutes, you'll hear the show's hosts and legal experts, Kate Shaw, Leah Littman, and Melissa Murray, discuss the draft Supreme Court opinion where a majority is prepared to overrule the decisions that protect and reaffirm the constitutional right to an abortion. You should also know that Vote Save America will be rolling out a virtual hub in the coming days where you can find ways to take action.

And in the meantime, subscribe to Strict Scrutiny to get regular updates on Supreme Court decisions and visit votesaveamerica.com slash row where you can easily donate to over 80 abortion funds across the U.S. Welcome to this emergency episode of Strict Scrutiny. On Monday night, Politico published a draft Supreme Court opinion that would gut the constitutional right to an abortion. Chief Justice Roberts confirmed this morning, Tuesday, that the leaked document is real, but that it does not represent a decision by the court or the final position of any member on the issues in the case. The court is poised to issue the full and real decision in a few weeks. But the publication of the leaked document has already set off a fresh political conversation about whether Congress can codify protections for pregnant people into law before what could be a devastating opinion coming early this summer. In this episode, we'll break down what this leaked document tells us and what it means for abortion rights and the

court. Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Well, fuck. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts who possess fewer and fewer constitutional rights with each passing moment. I'm Leah Littman.

And I'm Melissa Murray. And we are going to try and patch in Kate Shaw. She is traveling on a bus in between states to just get a sense of what the landscape is going to be like in a few months. So we'll try and get her in on that patchy bus Wi-Fi if we can. But as you likely know, listeners, on Monday night, we got some major SCOTUS news. Politico reported that they had received a draft majority opinion in Dobbs v. Jackson Women's Health Organization.

And this draft majority opinion, which they posted on their website, overruled Roe v. Jackson Women's Health Organization. And this draft majority opinion, which they posted on their website, overruled Roe v. Wade and Planned Parenthood v. Casey. And can I tell you, when this announcement dropped, it was like a fucking bomb went off. Folks were not shook, but shooketh, right? I don't even know what else to say. Phones were blowing up. I got so many messages. Like, it was absolutely outrageous. So yeah, a seismic, seismic Supreme Court event on Monday night. I basically haven't slept, and I have allowed myself some caffeine this morning.

So it's a lot. You look radiant. You look radiant. It's a lot. You look radiant. It's a lot. Well, thank you. It's going to be great when your commander takes ownership of you. It's going to be fantastic when I am just forced to give birth by the state. I'm really looking forward to that.

So I decided to do a little glow up in advance of that. It's working. Kate is here. So Kate is on a bus going between states. She's on her way out of New York City and on to Northern Climbs, but she's stopped to give us a sense of what it's like on the road to be a lady without rights. So Kate, what's going on? Hi, Melissa. Hi, Leah. Well, we're not disclosing my route or specific mission, but I'm just like, yeah, I'm testing out sort of the interstate travel future that we are all looking at.

And guys, welcome to Dystopia. It's bleak out here. How's the Wi-Fi, Kate? Not great, but I think it's the least of our problems. Wi-Fi. Rights and Wi-Fi are commensurate and both are poor in this landscape. Well, they're about to take our Wi-Fi away too. So, you know, it's just wonderful. Kate, Alito really gave you quite the birthday gift. I hope you enjoy it because obviously, dear listeners, this event required some emergency podcasting. So here we are. This is going to be a quick and dirty episode, but let's roadmap it. So first, we're

going to go over some highlights of this draft opinion, which was apparently written by strict suit knee super fan and skincare maven Samuel A. Alito Jr. And I guess he has taken some time out from his exfoliation to exfoliate all of our rights right out of our lives. So he had time, listeners. He really did. And after we do that, we're going to engage in some rank speculation about who leaked this bombshell. And when that's done, we're going to get together and measure ourselves for Handmaid's Robe. So stick around

if you would like your own. We have wool and a poly blend and possibly even some organic fabrics to choose from. All right. So should we dive into the opinion? Sure. So this is an absolute shit show, right? I think that's the bottom line. There is no compromising with this opinion. None. No pleasantries, no niceties, some lip service to people of good conscience being on all sides of the debate, but actually like obvious vilification of those who would protect the right to abortion. There's a lot of gaslighting and doublespeak in this opinion. We're not actually calling anything else into question while calling everything else into question. We'll get there. We're not actually casting aspersions on those who favor Roe while

casting aspersions on those who favor the constitutional protection for abortion. So yeah, I think that's kind of like the bottom line. So Kate, is it an absolute shit show or an absolutist shit show or both? It's both, Melissa. He never disappoints. No, he doesn't. Yeah. I mean, he starts out with the opinion by quoting the lawyers who represented the clinics as saying they're, quote, no half measures available and that the court must either reaffirm or overrule Roe, basically saying, Libs, you made me do this by suggesting there isn't a compromise here.

Taylor Swift, look what you made me do. Exactly. And then he says, we hold that Roe and Casey must be overruled because really he's compelled to do this. And then, you know, begins with just piling on Roe, calling it egregiously wrong from the start, exceptionally weak, having had damaging consequences. I mean, you call it absolute and absolutist. The YOLO wing of the court has won. You know, we were talking about after the oral argument in Dobbs, there were strong, let's just do it and be legends vibes. And it appears they are inclined to do it. And can we also pause and say, what a flex and a move it is for Justice Samuel Alito to have the opinion overruling Roe and Casey. That's who Clarence

Thomas assigned it to. Was that Ginny's idea? I don't know. But I mean, they gave it to the angriest angry white man on the Supreme Court and quite possibly in the country as well. So here's my question. This surprised me because I have been saying all along that it's going to be Amy Coney Barrett. Like people have been talking about they need a woman in the conservative block to be able to do this. And, you know, she was sort of tailor made, genetically modified for this role. And it wasn't her. Were you surprised, Leah, Kate? You know, we speculated. I had speculated that she might be offered the opinion and be able to decide whether she wanted to write or to kind of, you know, let the cup pass her over. And I don't know. It's not typically how it's done.

But I can well imagine Thomas basically saying, Amy, this is yours if you want it. And her saying, I think I'm obviously going to cast the vote for it, but I'm not sure I'm ready for the public response. And so I don't know. I feel like there's a backstory here because it is it's Thomas's call who he assigns it to ultimately, but he could well have done it in consultation with the others. Or Alito just was like, pick me, pick me, pick me and made it kind of impossible for Thomas not to do it. Well, do you think that Thomas passed over himself because of all of the fakakta stuff with Ginny and the text messages and the Ginny textualism and recusals? Well, I mean, this opinion was assigned back in December. So I don't know

that that really explains it. Given that the opinion was assigned to Samuel Alito, he decided to show up in full force because why not? Trolito was in rare form here. Why not? Trollito was in rare form here. So the first Trollito move was to invoke their recently departed colleague, Ruth Bader Ginsburg, ad nauseum. You would think Ruth Bader Ginsburg was like a little justice angel sitting on his shoulder helping him write this opinion. He cited her so many times. Like, listen, I'm all for cite more women, cite black women, cite all the women. But my dude, not like this. So I mean, he's giving the impression that, well, of course, Justice Ruth Bader Ginsburg would have been with us in overruling Roe.

It's so specious. I didn't take it that way. I didn't take it this way. I took this as like a total F you. Like F you, Libs. Here's your queen. And guess what? Her name's going to be all over this. And almost like sort of rubbing it in, like, we got this because she stayed too long. than my rationale, because in addition to citing Justice Ginsburg, the opinion also cites John Hart Ely, the former law clerk to Chief Justice Earl Warren. Ely criticized Roe. The opinion also cites Larry Tribe, liberal law professor at Harvard, as having criticized Roe. The next footnote is to a Justice Ginsburg article. Those were literally the first five footnotes in the opinion. Again, just rubbing our faces in it. You are the architects of your own misery. Enjoy. And we should say for people who aren't familiar with this sort of backstory,

that the citation to Justice Ginsburg is to a famous speech and article in which she expressed some doubts about whether Roe might have short-circuited the political process that was on its way to a more durable settlement, although later she largely repudiated that position. But that's the citation to RBG that the opinion offers. But that's not everyone who Justice Alito invoked. There's also a mention of his nemesis, his arch-nemesis, Harvard Law professor Mark Tushnet, who Justice Alito also cites as having criticized Roe. Justice Alito, somewhat famously or

infamously, as we've talked about on the podcast, invoked a blog post that Tushnet wrote. Justice Alito mentioned this in a speech he gave to the Federalist Society. It's like he's obsessed with Mark Tushnet, like big Mariah Carey, why are you so obsessed with me energy. big Mariah Carey, why are you so obsessed with me energy. I'm having a really hard time imagining Mark Tushnet as Mariah Carey and Justice Alito as Eminem. This might be the silver lining on this entire episode. Honestly, can't you imagine Justice Alito just turning up Lose Yourself and then cranking out this 98-page banger like, I've been training for this my entire life. I mean, right? You can see it? In the moment, never let it go. You only get one chance. Do not miss your chance to blow. This opportunity comes once in a lifetime. Yo! Exactly, right?

Those were the lyrics in his mind. And if you know, if there was ever any doubt whether this draft opinion was the real one, you know, the caustic tone and trolling, I feel like made clear that this definitely came from Justice Alito's pen. It's written with big, and what are you going to do about it, Libs energy. This was no faux Alito. This was real Lito. This was all of us. Veras Alito. In addition to the real, unfiltered Justice Alito, we also got some nods to colleagueship and collegiality. So even though Justice Thomas had to assign this opinion to Justice Alito and miss the chance to be a true legend, he did get a really, really legendary footnote. So in footnote 41 of this draft opinion, Justice Alito gives Justice Thomas's fakukta box concurrence eugenics theory a really, really meaty treatment. So here,

Justice Alito calls on Justice Thomas and notes that other amicus briefs present arguments about the motives of proponents of liberal access to abortion. They note that some such supporters have been motivated by a desire to suppress the size of the African-American population. And it is beyond dispute that Roe has had that demographic effect. See sites to Justice Thomas's box concurrence here. And then it goes on. A highly disproportionate percentage of aborted fetuses are Black. For our part, we do not question the motives

of either those who have supported and those who have opposed laws restricting abortions. But see everything I just wrote. I love the, you know, yeah, you're maybe eugenicists and Nazis, but we're not questioning your motives. I'm not, you know, yeah, you're maybe eugenicists and Nazis, but we're not questioning your motives. I'm not judging you. This is the real gaslito energy that Kate was referring to earlier.

My friend Jessas Thomas thinks this is totally eugenics. I'm not going to judge, though. It could be Nazism, but I'm not judging. I am studiously committed to neutral principles. And that's all I'm doing here. I'm just acknowledging the difficult arguments on both sides. Like maybe you're Nazis, maybe you're not. Modern day eugenics also got a mention as Justice Alito was rattling off the many legitimate interests that states have to restrict abortion, noting that they may do so in order to prevent discrimination on the basis of race. And sex and disability. Oh, yeah. Yeah.

All the isms. Because we're the real feminists, libs. This is an anti-discrimination opinion. You heard it here first. Justice Alito, civil rights hero. Well, later, I mean, maybe we'll get to this, but when he says, you know what, and you know who most of the voters in Mississippi who enacted this law are? Women. The majority of registered voters in Mississippi are women.

This is a feminist opinion. Believe black women. Believe black women. Believe black women. Okay, the feminine opinion. Believe black women. Believe black women. Okay, wait, wait. Can I come back to this as a black woman? Justice Alito speaks for me. He is the advocate. He's the strongest black woman on this court i hope kbj knows right george w bush actually appointed the first black woman to the supreme court and it's samuel alito suck it libs though like it is just alito doing the most um and you know he's sort of also along the way doing the fullest version of himself and also like handing out little trinkets to each of his friends, his fellow travelers. Right. So he's got, you know, not just Clarence abortion is eugenics. Thomas, who gets like a shout out and his pet issue recognized.

Lady Safe Haven also has a passage devoted to her preferred theory of the issue. So let me maybe quote that, which is, Americans who believe that abortion should be restricted press countervailing arguments about modern developments. They note that attitudes about the pregnancy of unmarried women have changed drastically, that federal and state laws ban discrimination on the basis of pregnancy, and that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the cost of medical care...

We've solved feminism! We've solved sex discrimination, right? This is fourth dimension feminism. Okay, wait, but then he gets to the lady safe havens. The states have increasingly adopted safe haven laws which generally allow women to drop off babies anonymously and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home, right?

It's solved. The opinion could end there. Boom! Just use a firehouse. Just use a firehouse, ladies. It'll be fine. So can we just come back to like the cheek it takes to write this passage when you have actually been in the dissent for most of the decisions that tried to secure these protections over the years? I mean, where's that guy from SEIU who's like, take us out of your mouths? You remember that guy? Kyle? What's his name? Kyle?

Bragg? Is that right? Yeah, Kyle Bragg. Yes. Good. We put it together eventually. Where is Kyle Bragg right now? Because this is like, this is Trollito right here.

Yes, exactly. Like, get mothers, get working women's name out of your fucking mouth. And in case you didn't guess the standard of review that Justice Alito announces for courts to use when determining whether abortion restrictions are legal is whatever the fuck you want states or, you know, yes, Oklahoma, yes, Texas, there is a Santa Claus. And it's me, Samuel Alito. Santa is real. More formally, the opinion says the applicable legal standard that courts should use is rational basis review, the most deferential standard. The standard whereby if the state doesn't tell you why it's doing it, you can just make it up

if you're a court. Yep. And Justice Alito says courts cannot substitute their social and economic beliefs for the judgment of legislative bodies. The implication being that states can ban abortion at all points in pregnancy without exceptions for rape or incest. And honestly, it's unclear if an exception for where an abortion might be necessary to save the life or health of the mother would even be required under this rational basis standard at all points during a pregnancy. I don't see a woman. I see a vessel. Exactly. Anyway, in addition to completely eviscerating any legal standard by which to review abortion

restrictions, the opinion is also like has a lot of Hansel and Gretel energy, which is to say that it is laying breadcrumbs to eviscerate a lot of other rights. And to be very clear, Justice Alito goes to great pains to sort of paint this as it's just abortion. Abortion is unique. Abortion is exceptional. And this doesn't go any further than abortion. Abortion by itself is a limiting principle. But then he actually makes some nods. Abortion by itself is a limiting principle. But then he actually makes some nods. Like he laces this opinion with a lot of references to Obergefell, which is the 2015 decision that legalized same-sex marriage. He references Lawrence v. Texas, which is a 2003 decision that decriminalized same-sex sodomy and paved the way for broader recognition of same-sex sexuality and same-sex relationships. And he also talks about contraception.

So Griswold versus Connecticut, Loving versus Virginia, interracial marriage. It's all in there. But the real sort of meat of this kind of comes toward the end of the opinion. So he notes, These attempts to justify abortion through appeals to a broader right to autonomy and to define one's, quote, concept of existence, end quote, prove too much. Those criteria at a high level of generality could license fundamental rights to elicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history. You know what else could be undergirded by those concepts of defining one's own existence?

Liberty more generally, marriage, same-sex marriage, interracial marriage, the right to use contraception, the right to procreate, the right to raise your children in the manner of your choosing, the right of extended family members to live amongst themselves. So all of these are sort of being stacked up, ready to go, just the next set of dominoes for this Trollito opinion to take on. And again, he makes some really not so subtle implications, even if he doesn't call out same-sex marriage, interracial marriage, same-sex sex by name. So again, toward the end of the opinion, he notes that rational basis reviews the appropriate standard. And then he goes on to say, it follows that states may regulate abortion for

legitimate reasons. And when such regulations are challenged under the Constitution, courts cannot substitute their social and economic beliefs for the judgment of legislative bodies. That respect for a legislature's judgment applies even when the laws at issue concern matters of great social significance and moral substance. What could be of greater social significance and moral substance than laws extending marriage to same-sex couples or interracial couples or the rights of parents to raise their children. He's putting it all out there. He doesn't say it explicitly because he can't. This is the quiet part. And it's not even that quiet because the draft attempts to distinguish the abortion right from, quote, the rights recognized in the cases on which Roe and Casey rely. But Roe and Casey don't rely on Lawrence or Obergefell as those cases post-state Roe and Casey, with the implication being that the court is standing ready to maybe overrule Lawrence and Obergefell as well.

And we should say that we will get to the kind of question of how this draft emerged and what it could mean in terms of its relationship to whatever the final product the court releases looks like. could mean in terms of its relationship to whatever the final product the court releases looks like. But I have to say, I gotta believe that, or at least it seems to me there's a real chance, that this is maybe Alito's first draft, and it is as maximalist as you would imagine a first Alito draft to be, and that there could be some qualms on the part of like a Kavanaugh, at least potentially, with so obviously calling into question cases like Obergefell, Lawrence, maybe Loving. And so I'm not sure that all of that language and logic survives to the final opinion. And one of the additionally stunning things to me about this draft was that Justice Alito's efforts to limit the reasoning in the opinion just to abortion seemed to gesture toward the possibility

of the court recognizing some constitutional protection for fetal life, which would require states to criminalize abortion. So for example, Justice Alito's draft opinion states that Roe and Casey acknowledged that abortion destroys fetal life and what the Mississippi statute describes as an unborn human being. And then at one point, the draft opinion kind of protests that, but of course, we're not basing this on any view about when a state should regard prenatal life as having rights or legally cognizable interests. But the court approvingly cites an amicus brief that was filed by John Finnis. And Finnis has argued that there is constitutional protection for fetal personhood. And Justice Alito, at the oral argument in Dobbs, had said, you know, the fetus has an interest in

having a life. And that doesn't change from before viability to after. And so there, it also seems like a potential breadcrumb. Absolutely. And another thing is that the court saying, well, look, abortion involves potential life also doesn't distinguish contraception because Hobby Lobby, in Hobby Lobby, Alito himself said employers could view contraception as aborto-facients. And if you're going to credit that position, then the logic here would seem absolutely to imperil protection for contraception. No question. That's not it, though. So Samuel Alito, who obviously has the beating heart of a black woman,

wants us to recall that Jim Crow sucked. It sucked a lot. And you know what else sucks like Jim Crow? Reproductive rights. That's what sucks. And so he suggests that we should overrule them because Black lives matter. So he has to say, some of our most important constitutional decisions have overruled prior precedents. We mentioned three, goes on, there are a bunch, but the one that he really puts first is Brown versus Board of Education, where the court repudiated the separate but equal doctrine, which had allowed states to maintain racially segregated schools and other facilities. This from a dude who is part of

concerned alumni of Princeton, which wanted to keep that college all male, right? So but let's continue with this black woman energy. In so doing, the court overruled the infamous decision in Plessy versus Ferguson, along with six other Supreme Court precedents that had applied the separate but equal rule. He goes on to say, an erroneous interpretation of the Constitution is always important, but some are more damaging than others. The infamous decision in Plessy versus Ferguson was one such decision. It betrayed our commitment to equality under law. It was egregiously wrong on the day it was decided. And as the Solicitor General agreed at oral argument, it should have been overruled at

the earliest opportunity. Roe was also egregiously wrong and deeply damaging, for reasons already explained. Roe's constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed. Black Lives Matter, y'all. The opinion is also perhaps the best encapsulation of the stare decisis is for suckers energy that we have flagged for over the last two years on the Roberts Court. You know, the court does gesture in the direction of stare decisis and the idea that the court should consider some factors when deciding whether to overrule cases. But, you know,

it chooses to spend like a breezy paragraph or so on reliance interests, even though, of course, like women, society at large, many people have structured their lives around the access and availability of reproductive health care and the ability to decide when and whether to have children. But the opinion says, you know, well, the Casey plurality acknowledged that there aren't conventional concrete reliance interests there. And the opinion also took, if you listen to our episode recapping the oral argument in Dobbs, it took Justice Kavanaugh's question slash comment from the oral argument about, well, hasn't this court overruled cases all the time, and turn it into like a three page long footnote that says, well, on many other occasions, this court has overruled important constitutional decisions. And then in a footnote that spans three pages lists a bunch of them. You know, again, as we've said, none of those examples involve overruling a case that recognize

a constitutional right that is so fundamental and integral to people's ability to participate equally in society. But no matter. Ladies, you're good on voting, right? You can participate in the electoral process. You have no problem running for president and being elected into office. You're well represented. So this is of no moment. You don't need this for equality. This is all good. So this is of no moment. You don't need this for equality. This is all good. Yep.

The opinion proudly announced that women are not without electoral or political power. So feminism, ladies, solved. Check. Check. In addition to the big abortion exceptionalism energy, this also had some interesting American exceptionalism energy. This also had some interesting American exceptionalism energy. So at one point, Justice Alito seemed to be suggesting that abortion is what North Koreans do, not what Americans do. So he notes that to support this act, the legislature made a series of factual findings. It began by noting that at the time of enactment, only six countries besides

the United States permitted non-therapeutic or elective abortion on demand after the 20th week of gestation. And according to the footnote, those other six countries were Canada, noted autocracy, China, the Netherlands, again, another autocracy, North Korea, Singapore, and Vietnam. Yeah. This might have been aimed at persuading the chief justice, who also suggested at oral argument the United States was unique in allowing abortion access. Although since this Politico story broke, CNN has reported that this doesn't really seem to have persuaded the chief Justice yet. So CNN reported that the Chief Justice does not want to completely overrule Roe and might be dissenting from Justice Alito's draft opinion. He just wants a little overturning. Subtle. Right. This opinion has a subtlety of like a drunk, large bull in a triumphant shop.

The Chief Justice wants a black dress. Justice Alito's like, no, bitches, we're wearing sequins. We're doing a whole ball gown we're doing justice alito's opinion is like the j-lo 2000 grammys versace dress like all the way to dv all the boobies hanging out that is this opinion like ironically enough like a dress cut all the way to someone's pubic area is very ironic. Trolling again. Speaking of subtlety, Justice Alito's draft heavily references English legal precedent, including that of famed jurist Sir Matthew Hale, who it should be noted, sentenced at least two women to death for witchcraft and also wrote a treatise supporting marital rape.

This citation is in many ways emblematic of the opinion's utter lack of concern for women. You know, the conceit that regulating abortion was for the safety and health of the mother. That's gone. Just wait. Witchcraft is going to be in there any day. We can restrict abortion because they're witches. Yep. Because Sir Matthew Hale. Boom, lawyer. So there are also

some really interesting language choices. Usually this, I think, comes across most strongly in Justice Thomas's opinions. He, rather than referring to abortion providers as providers or physicians, will refer to them as abortionists. But Justice Alito, because he's writing for multitudes, adopted this same kind of language here. So again, the use of abortionists. But Justice Alito, because he's writing for multitudes, adopted this same kind of language here. So again, the use of abortionists throughout the opinion was rather striking and a little jarring. It's killing me, but I'm going to hop off here because my connection is so unstable. But you guys are going to get to the bottom of this, right? We are going to get to the bottom of this. And I'm going to send you my road measurements just like offline.

Call us when you reach Canada. Or wherever I'm headed. Or wherever. Okay. Bye, Kate. Stay strong, everyone. Follow the North Star, Kate. All right.

Is it time for rank rumor-wrongering and speculation? Is it that time? Oh, yeah. It's time. It's time. It's time. The million dollar question. Who leaked this? I mean, what's interesting is I feel like when this initially broke, there were questions

about, is this real? And my intuition immediately was yes. The circulation stamp on it was very real. The political reporters were very confident about this. The content of the opinion was what it would be. And now it's basically been confirmed since the Supreme Court and the Chief Justice issued a statement that a news organization published a copy of a draft opinion in a pending case. And this betrayal of the confidences of the court is what the statement says. So that seems to acknowledge that this is real. And it says he

has directed the marshal of the court to launch an investigation into the source of the leak. So it's real. This is a singular and egregious breach of that trust that is an affront to the court and the community of public servants who work here. This is real institutionalist energy. Yeah, which is utterly absent in the draft opinion that we saw. We're getting ahead of ourselves. First of all, the court is not a place where people talk out of turn about deliberations. No, I mean, there has never been a leak of a draft opinion by the Supreme Court, to my knowledge, in a case. I mean, almost all the time, reporters and commentators are forced to look for breadcrumbs

and read tea leaves. That's what we do. That's what we've been doing about what might be happening in these cases. The idea that an actual draft opinion leaked is unheard of and unprecedented. You know, the court operates under this veil of secrecy and confidentiality in which

its deliberations are not supposed to leak. Now, sometimes there have been leaks. In fact, there have been leaks surrounding the court's abortion cases. After Casey, reports emerged that the initial vote at conference was to overrule Roe versus Wade. And it later came out that Justice Kennedy had changed his vote in that case. But that's different than it coming out before the final opinion. And to be clear, even when there are those sort of post-mortem leaks, they are dealt with and sanctioned, not in a formal way, but usually informal shunning. So remember when Eddie Lazarus wrote that book, Closed Chambers, that sort of detailed the kind of sturm und drang of the court's deliberation over capital punishment? Lazarus was a Blackmun clerk

at the time. He published this book after his clerkship, and I think he's been ostracized from Supreme Court circles. So I mean, even if there's no sort of formal action, there is informal shunning. The norms around this sort of omerta are really, really strong. So when this happened, like when I say people were shooketh, they were shooketh because this is not supposed to happen. This never happens. But again, going back to examples, this actually happened in the lead up to Roe, where the Washington Post was able to break a story about how when the court was initially deciding to hear challenges to restrictive abortion laws, then Chief Justice Berger,

who was in the minority, exercised the power to assign the opinion, which isn't typically done when you're in the minority rather than the majority, and that that ended up delaying the resolution of the case until the next term. That was itself a huge deal. But again, there was never an opinion. Exactly. Never a draft opinion that has leaked. And so the question is, is like, who would do this?

Who would risk it all? Risk it all. Yes. Who would? OK. So let's go through the suspects. All right. So let's go backwards, like from least likely in our view to most likely. Right.

OK. So there was a lot of chatter on conservative Twitter that this was obviously the work of liberal firebrand Sonia Sotomayor, like she did this. And I have to say, I'm not really understanding the strategy because releasing this now, I think, possibly could galvanize public opinion around the abortion question. But if the public was not bestirred to go petition the court and protest in front of the court around SB8, I don't know how this changes anything. And more importantly, it's so far away from the midterm elections that I don't know that you get the kind of political payoff that you were hoping for.

It's better for the dissenters for this to get released in the normal fashion in June with the other opinions and have it be a huge bombshell in June. Yeah. And also the dissenters are constantly forced to be in this position where they're like begging the conservatives for like a footnote suggesting that this opinion will not be the end of the world. They don't have the ability and wouldn't risk it all to do this given, again, the extent of compromise that they have to engage in. And I also just think it's unlikely that they would have leaked it now. Like if they thought the country needed to know that the court was going to overrule Roe, why would they have leaked it at the end of February

when the opinion was circulated? It just, I don't think that possibility makes a ton of sense. All right, so I'm like, that's off the table. I'm like- Rejected. Rejected. So then I think this is a more intriguing possibility.

The chief justice was the one who leaked it. He was the one at oral argument who seemed most intent on brokering this third way compromise. That's really not a compromise at all. It's just saying the quiet part quietly. He would have preferred to uphold the Mississippi law while stopping short of overruling Roe and Casey. And perhaps he floated this as a trial balloon to public opinion to persuade another justice to join him and the liberals to form a sort of hasty majority or alternatively to persuade the majority to temper this absolutist fakakta opinion a little bit. That's a little more plausible. But again,

the guy who released this statement talking about the good people of the court's ecosystem is not the one who's going to breach this longstanding norm of institutional omerta. No way, especially when he has been the one to allow institutional considerations to affect, you know, some of his ultimate decisions. And I don't think he would view, you know, a compromise of that institutional norm as an appropriate thing to do, even if he thought it might achieve some good purpose down the road. So OK, so let's just before we get to who it could be, there were so many tweets attributing this to the radical left. Leader McConnell said that this was yet another escalation in the radical left's ongoing campaign to bully and intimidate federal

judges and substitute mob rule for the rule of law. This is the point in Twitter where I hope someone posted a picture of the January 6th insurrection and was like, this you? This your mob? Anyway. And then the Federalist, not to be outdone, Meghan McCain's husband chimed in with, the SCOTUS abortion decision leak is what actual treasonous insurrection looks like. I don't think so, my guy. I think actual treasonous insurrection looks like actual treasonous insurrection. And then SCOTUS blog underscored that this was a grave, almost unforgivable sin. Perhaps a bit hyperbolic, but yeah. Focusing on how like the leak is the problem, a destruction of the court and the problem, you know, is a take when this opinion is about to have like devastating effects on people's access to health care and

their lives given shockingly high maternal mortality rates, especially among, you know, women of color. I mean, this is a take. CBS said that the chief justice was going to launch a full investigation, which totally reminded me of that time when the British royal family wanted to launch a full investigation of whether someone in the family had questioned the complexion of Harry and Meghan's son, Archie. And then nothing happened. It's like the guy in the hot dog suit saying, we're all trying to find the guy who did this. But we're not. No. But that brings us around to another possibility, which is someone in the majority.

Okay, so this, I think, Leah, this would be some tea. This would be some tea. And why might that have happened? Well, think about the, you know, tweets that you just read, Melissa. Doing it now is partially deflecting people's attention from the horror and the institutional impropriety of overruling Roe and having them focus on the leak and also minimizing the anger and surprise when this actually happens at the end of June. A few months before the midterm elections where it could actually be really damaging. So that we're like numbed by the point it actually happens. So there's that.

So I like that energy. It's also worth noting that I think last week, and we talked about this in our most recent episode, there was some Wall Street Journal reporting that one of the justices, one of the conservatives was sort of wobbly and perhaps was thinking about joining the chief justice. So, you know, that timing, I don't think is coincidental. No, it could be basically a shot across the bow and a warning to a possible defector that like you better hold the line or everyone is going to know that you're the one who jumped ship. And that I think is really important because like you need to hold this hard line. The conservative legal movement has basically been hunting this white whale for 30 years, and

you're not going to be the one to mess it up for us. You better get on side or you're going to get the chief justice in the Obamacare case treatment, which is to say we are going to pillory you. Yeah. And also just step back and ask yourself, who has played more constitutional hardball about the Supreme Court? Has it been the left? Justice Breyer? Justice Sotomayor? Justice Kagan? Methinks not, right? Or has it been the legal right? I mean, I think this was a clear threat to whoever this wobbly justice is. This justice who may be thinking of defecting that you defect and you sleep with the squishes. Yeah.

No. I mean, the justice who's saying, well, you know, maybe, Sam, we shouldn't suggest that people who favor abortion rights are Nazis. Could you take that footnote out? I will not. Sam is like, why are you going soft? And that's, yeah, a possibility. So can we also entertain some wildly conspiratorial theories? Oh, yeah. Oh, yeah. What if Justice Breyer accidentally left us on the Metro by mistake?

You know, that is a possibility. He's got senioritis. You never know. Like, he's counting down the days. It fell out of his backpack. Hard to say. His fjallraven. He's a VSCO girl. Although, honestly, if it hasn't happened during the first 28 years...

That's true. That's true. He's keeping it together. So it's not... I don't think it's... Right. Okay, another wildly conspiratorial possibility.

What if it was Ginny Thomas? Because this whole story has completely eclipsed any rumblings about Ginny Thomas's quote unquote textualism with Mark Meadows. It's completely eviscerated any discussion of recusals, any kind of interest in reforming the court's ethics rules. And it has the double achievement of actually getting what the conservative legal movement has wanted for 30 years. So it's a win for her. It's a win for her husband. And it's a win for her and her husband and the whole conservative legal movement. Am I wrong?

I mean, you're not wrong. I'm just speculating. Like, let me just be clear. I don't know. It is. The counter evidence or the competing consideration for me is, would Ginny Thomas be able to engage with a lamestream media reporter and actually hand them a copy of the opinion? What if it was like Lady Whistledown and she dressed like she sent Penelope Featherington

in a maid's costume to do this. Okay. So that is a possibility that I hadn't thought of. Again, we have no idea, but I mean, the possibilities are kind of amazing. But I think it provokes, you know, the question that I'm sure everyone has been feeling some version of or having some version of since 830-ish last night, which is, like, now what? Like, what does this leak mean for the ultimate decision? What does it mean for the institution of the court? Like, what does it mean for people who care about reproductive rights and justice? Well, can we come back to that? Like,

why now for that? Like, I have been operating in a post-Roe landscape for probably two years. Like, where have y'all been? Like, Roe is a nullity for most people. It's certainly been a nullity in Texas. Like, I get it, but this wasn't the wake-up call. The wake-up call was two years ago. I think that that's right. But I also think it is going to be a dramatic shift to when these criminal abortion bans are suddenly on the books. And there's real uncertainty in some states about whether they're going to be enforced and so on. So I agree that, of course, the court has been whittling, you know, the right to abortion down. I also agree that this was eminently, you know, foreseeable after the 2016 election, and especially after Justice Ginsburg was replaced by Justice Barrett. You know, it's intellectually unsurprising, but it's still really upsetting. Because even though, you know, I predicted

this would happen, it doesn't change the fact that I still feel like so much rage at it actually happening and how we got here. So I don't know. Yeah, I mean, I don't feel rage, surprisingly. And I was talking to some other Black women in like a chat and like one of them said this and I thought it was incredibly trenchant. She's like, I've been ready because I didn't want to have to get ready. And I think that's right. I think that like there are those for whom this has been a reality for a really long time and they've wrapped their minds around it. And so this is just sort of, you know, a final capstone, like a true final fuck you from the court. But I get it.

I get that there are, you know, there are people who are holding out hope. I mean, I don't even want to know what our poor little optimist is doing on the bus on our way to Canada. I know. I know. Wish we could wrap her in a strict scrutiny sweatshirt, give her a hug. Yeah, I know. Maybe we need like swaddling onesies as our merch. Swaddle cloths. Like our new merch, like for your newborn or for you. Yeah, for your new newborn that you will be forced to have or for you as you live in a world

without constitutional rights. But, you know, again, like now what? We got to organize. Yes. So what does that look like? What does it look like to organize? I mean, it's important to underscore that this capstone achievement of the conservative legal movement, you know, overruling Roe was a product of a

decades-long fight that focused a lot on obtaining state political power, that focused a lot on using all of the levers of political power to the maximum extent, playing hardball, and focusing on the courts. Those are all things that- Also focusing on keeping people out of the ballot box. I mean, you don't get laws like HB 1510 or SB 8 unless you've gerrymandered the political process to get a totally red legislature and you insulate yourself from any objections because people can't get to the ballot box to express their outrage. So yeah, I said something like this last night and there were a whole bunch of like,

you know, people way on the left, like, you know, what the F has voting rights done for us so far? Like, why can't, like Congress hasn't passed anything to protect the vote. And it's like understandable. I get that.

But we haven't had a full super majority in the Senate to be able to do any of these things. Like, I mean, it's like, like, I get it. I'm cynical, too. But what else is there besides like trying to secure the right to vote and actually getting out there voting, treating the midterms not like it's already lost in a fait accompli, but like something that we can actually get behind and move? No, I think that that's right. I think everyone should remember how they felt at 8.38 or so p.m. Monday night and apply that through November afterwards. Sustain it as long as you can. Figure out what you need to do to keep that energy going for the decades that it is going to take to unwind the damage that is going to be done to

our country. And I think you're absolutely right that a big part of this is going to be securing voting rights. These laws aren't possible in a world in which politicians are actually accountable to the people. Nico Bowie had a great tweet last night about the Women's Health Protection Act, which is pending in Congress. It's been passed by the House. It's probably unlikely to get passed by the Senate, but it would codify Roe and Casey's protections. Unclear what that means in a world where Roe doesn't exist, but you've got a good five weeks. Yeah.

But, you know, of course, it's still worth doing... Something. Something. Yeah. Not giving up. There are going to be state court cases and state laws that can be changed. You can donate to abortion funds. People are going to have to be traveling out of state for abortion care. You can be alert because if you don't think that a broader national campaign to nationalize this decision isn't

coming like you're delusional like yeah that's that's definitely coming fetal personhood is coming so like mad eye moody constant vigilance exactly um so this is sort of better than i thought it would be like i i'd been gearing up for this. Not quite like this. I didn't expect it to be leaked as a draft, but I knew we'd be doing this. I'm glad we did this together. Yeah.

I wish Kate hadn't been on a bus. It felt a little too on the nose for her to be going to Canada. Yes. But, you know, on the other hand, we'll be doing this again at the end of June or the beginning of July. So there will be another opportunity.

This is just a draft. Exactly. This is just a draft. An absolutist draft episode. I'm sure it will be softened around the edges. That's probably all we have time for.

Like, we have to have a call to arms, Leah. Like, I mean, let's fucking go. Let's do this. Like, we don't have to go gently into this arms, Leah. Like, I mean, let's fucking go. Let's do this. Like we don't have to go gently into this good night. No, we don't. And I think it is worth thinking about, one, what can you do?

And two, what can you do to sustain yourself so you can keep doing that and many other things for the foreseeable future? I personally consumed a lot of chocolate this morning and throughout the day. So I could keep going today and I will be figuring out, you know, how I can help support, you know, our state attorney general campaign. So Dana Nessel stays in office rather than the prosecutor who has pledged to enforce, you know, Michigan's criminal abortion ban. Um, and there are many other things you can do. And again, they seem like they're maybe not going to make a difference.

But it's so important to keep in mind all of the little things that the conservative legal movement had to do, focusing on state elections, local power, and all of that. School boards. School boards in order to build up the capital and the power and the infrastructure and using all of the levers of political power to get what they want. And this is not over. We'll be back. by Melissa Marie, Kate Shaw, and me, Leah Littman. Produced and edited by Melody Rowell, with audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez, Sandy Gerard, Elijah Cohn, and Ari Schwartz. And digital support from Amelia Montooth.

And thanks to Andrew Chadwick for stepping in to emergency produce this episode since the opinion leaked while Melody is out of town. Thanks, Sam. Yeah, seriously, what a dick. If you're looking to do something right now, you can go to votesaveamerica.com slash row to donate to more than 80 local abortion funds and keep an eye out for more actions to take from Vote Save America.