The Daily Signal - What to Know About Leaked Supreme Court Draft Opinion That Would Overturn Roe v. Wade

Episode Date: May 3, 2022

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.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a special edition of the Daily Signal podcast. By now, I'm sure you all have heard of the leak that happened at the Supreme Court on Monday night. A full draft of the Dobbs case decision authored by Justice Samuel Alito was leaked to the press. Politico issued that full draft. It's nearly 100 pages. And right now, Americans are asking the question, what does this mean? Is this true that Roe v. Wade? is going to be overturned. I had the chance to sit down with Carrie Campbell Severino. She's the president of Judicial Crisis Network. And we talk about what this means at the court level for a breach this significant for a full draft of a court case to be leaked to the public. And also the significance of what this means as Roby Wade moves forward and just how likely it is that this is accurate, that it will indeed be overturned.

So I'm excited to share this conversation with you all. 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, really breach at the Supreme Court and this opinion is Carrie Campbell Severino. She is president of Judicial Crisis Network. And Carrie is also the co-eastern. author of Justice on Trial, the Kavanaugh confirmation, and the future of the court.

Carrie, thank you so much for being here. Great to be here. Thanks for having me. So what can you tell us about this leak draft opinion? Well, I can tell you the idea that there would be a leak draft opinion in the first place is some of the most shocking news of this. I never would have expected to see a leak like this with the level of security and the level of confidence that justices have in their clerks that they can really trust them with these incredibly stuff. Think about it. Bush versus Gore didn't have a leak. I mean, all of these

hell over the United States that restored second 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 a tax on Kavanaugh during his confirmation on Justice Barrett for her religion, on Justice 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.

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 secure? of those documents? You know, when I was there, and obviously things had to change during 2020 when people were working from home, but you weren't allowed to take anything out of the building. It 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 have printed them just out of the punishment. So this is really extraordinary to see this happen. But 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, our protests at the court last night, we're going to see continued pressure, potentially threats of violence, who, knows, you know, that kind of thing and in the outpouring of frustration from the left of this opinion might be enough to maybe change votes, maybe stop the opinion. I think that was, first of all, a miscalculation because I don't think that the justices

and the majority are going to be, allow themselves to be bullied in that way. But I also think that that's a horrible step in the politicization of the court for someone within the court to be trying to manipulate. in that way. 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? You know, unfortunately, we only have speculation on that. I mean, the how, it seemed it was a printed document. It seems it was then scanned and given to Politico. And so I think some people have said that that printers would

have a unique mark on the document. They might be able to trace what printer 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, you know, 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 had 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 surprised. either for anyone who 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 versus Wade. It's an outcome that neither side of the case thought was actually possible. Even people trying to oppose the law said, yeah, there's no way for you to let this law pass and uphold Roe. So I'm not sure that 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. 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? You know, I'm optimistic that they will find the person. The consequences, you know, 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 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 close 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 to a hero.

And so I think you'll have some people celebrating it as this destructive act that's really undermining the institution of the court as somehow, you know, a wonderful contribution to, I don't know, certainly not a good contribution to public discourse, but that somehow, you know, that the ends would justify the means when it comes to advancing their liberal policy goals. 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? 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 that 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 treat. 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 that. And that's why he's trying to make sure that the person who leaked his opinion is found

and can suffer the consequences. 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? You know, the opinion is just a tour to force of addressing the theory of the law in a way that is clear and just straightforward. You know, it's, it's

interesting is you're reading through it. And obviously, everyone's trying to read through it as fast as possible. It's kind of going, okay, let me pick out the flashy lines, the quoting line. He clearly wasn't writing this to be a, you know, 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 turns 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 versus Wade and Planned Parenthood for Casey. He 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 rewrite 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 can possibly be depleted. to support 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 address 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 without law abortion. But when the 14th Amendment has 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 even if you say, okay, maybe we should just follow the decision anyway because a lot of waters under the bridge, he applied the standard factors that a court looked 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, two. 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 that maybe was not the panacea that Planned Parenthood seemed to think it was going to be that if the court just rules on this, this issue is going

to go away. I think the good news is the issue now is going to go back to the American people and its representative, 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 with 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 much more representative approach to how this is done, rather than a one-size-fits-all solution handed down from imperial judges. 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. It's 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?

Yeah, you know, obviously everyone assumes a big opinion like this to 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 this, leaving this decision out there hanging, just it increases the improper pressure on the court, I think draws attention and focus on the impropriated league. I think the best thing for the court to do is simply to release the opinion. The great news is there is, the opinion is outstanding. It's thorough. I don't think it needs additional work whatsoever.

And that's pretty typical. First draft opinion, 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. 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? 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 lost codifying row and, frankly, whatever other liberal wishlist items they can come up with. But this is, they're willing to sort of canonize whoever it is that leased opinion as if this was a, you know, 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, you know, 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, Katanchi Brown Jackson. The Constitution is trash and should be scrapped. 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, 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 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-nose prisoners kind of approaches to trying to politicize every possible issue here. Carrie Campbell Severino Judicial Crisis Network president. You can follow all of Carrie's reporting her updates at J-CN Severino on Twitter. Carrie, thank you so much for your time today. We really appreciate it. Thanks. Good five. You know.

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