What to Know About Leaked Supreme Court Draft Opinion That Would Overturn Roe v. Wade
00:06This 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 thepresident of Judicial Crisis Network. And we talk about what this means at the court level for a breachthis significant for a full draft of a court case to be leaked to the public. And also the significanceof what this means as Roby Wade moves forward and just how likely it is that this is accurate,that it will indeed be overturned.
01:05So 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 Courtand 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.
01:49Carrie, 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 placeis 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 levelof confidence that justices have in their clerks that they can really trust them with theseincredibly stuff. Think about it. Bush versus Gore didn't have a leak. I mean, all of these
02:21hell over the United States that restored second rights didn't have a leak. There wasn't a leak likethis 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 beingwaged against justices on the court, whetherit 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 becauseeven more institutions are being undermined in the process.
02:59And 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 peoplewere 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
03:25publicly 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
03:51at the court come in and steal this.But honestly, I think most people are assuming on both right and the left that this is probablythe 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 seecontinued pressure, potentially threats of violence, who,knows, you know, that kind of thing and in the outpouring of frustration from the left of thisopinion 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
04:27and 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 someonewithin the court to be trying to manipulate.in that way. Yeah. Well, and Chief Justice, John Roberts, he's already ordered an investigation to lookinto what happened, how this happened. What do we know right now about the why behind why this wasleaked 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 seemsit was then scanned and given to Politico. And so I think some people have said that that printers would
05:10have a unique mark on the document.They might be able to trace what printer came from and use that in their investigationprocess.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 clerkwanted 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
05:39telegraphed at times that it is open to this public pressure when you read about caseslike the Obamacare case that famously there was reporting that showed that the Chief Justicehad originally voted the other way and switched his vote. And similar reporting came out afterthe census case. Now, the difference in this case is the Chief Justice, who had both of thosecases, is the one who's alleged to have switched as a result of outside public pressureappears 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 Justicewas trying to find some way to split the baby effectively and uphold the Mississippi law while somehow
06:20not disturbing Roe versus Wade. It's an outcome that neither side of the case thought was actuallypossible. Even people trying to oppose the law said, yeah, there's no way for you to let this lawpass and uphold Roe. So I'm not sure that that strategy doesn't seem sensible to me, but it's just such anoutrageous leak, that there is no good motive here to go to. I think we'll have to find outwho it is, and maybe that will give us some insight. And how likely do you think it is that theleaker 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
07:04your 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 potentiallyeither be disbarred or disqualified from being admitted to the bar, because not all closenecessarily 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.
07:44And so I think you'll have some people celebrating it as this destructive actthat'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
08:36understood 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 politicaland 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
09:18and 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 draftopinion from Justice Samuel Alito? You know, the opinion is just a tour to force of addressingthe theory of the law in a way that is clear and just straightforward. You know, it's, it's
09:59interesting is you're reading through it. And obviously, everyone's trying to read through it asfast as possible. It's kind of going, okay, let me pick out the flashy lines, the quotingline. He clearly wasn't writing this to be a, you know, to get rhetorical applause. He was writing itto make a clear, persuasive case. And I think that is so refreshing. He's not trying to come upwith cute turns of phrase. He isn't trying to hide the ball, which unfortunately happens in alltoo many opinions, trying to cover up for the fact that the court's doing something that it maybedoesn't want to own up to. He just said straight out, we are overturning Roe versus Wade and PlannedParenthood for Casey. He must be overturned. Didn't try to pretend to have it both ways. He addressed
10:39both 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 ofhiding the ball and obfuscation that happens in these decisions. It claims to be upholding a caseand then simultaneously rewrite the entire basis of the case.And he pointed out how Casey never even analyzed whether Roe was actually good precedentand well-founded before deciding it was going to allegedly follow it and then, of course,rewrite it.And then he goes into the history.
11:18And it's just beyond clear that nothing in the constitutional text, nothing in the implicationsof 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 theother lie that's being told about this.One is that somehow people are trying to make the argument that abortion has a longhistory in America.
11:49And 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 ofwaters under the bridge, he applied the standard factors that a court looked at when
12:18deciding whether you should follow erroneous precedent.And Roe v. Wade fails every single one in spectacular fashion, whether it's the soundnessof the underlying reasoning, two.the impact it's had on the courts. He talks about how difficult it is for courts to apply thesedecisions, the way that they have been misused and contradictory and basically are made uptypes of new standards that only apply in the abortion area and how damaging it's been to ourpolitical process as well. That's kind of evidence that maybe was not the panacea that PlannedParenthood seemed to think it was going to be that if the court just rules on this, this issue is going
12:56to go away. I think the good news is the issue now is going to go back to the American peopleand its representative, and that's where it belonged all along. So it's still going to be a debatein this country, but it won't be a debate that gets settled by five unelected judges. It's going tobe 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 amuch 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
13:36unfold 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?
14:02Yeah, 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.
14:34And that's pretty typical.First draft opinion, you don't circulate it to the other justices unless it's verywell 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 thatit's out there in the public because I think the longer that debate is out there, the more damageis done to the institutional reputation of the court. And what we have seen from the far left is that
15:11right 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 seenis, yeah, they're calling for court packing. They're calling for the elimination of the filibusterin order to pass a lost codifying row and, frankly, whatever other liberal wishlistitems they can come up with. But this is, they're willing to sort of canonize whoever it isthat 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.
15:57We 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 maingroup 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 whateverit 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.
16:35And 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 prisonerskind of approaches to trying to politicize every possible issue here.Carrie Campbell Severino Judicial Crisis Network president. You can follow all of Carrie'sreporting her updates at J-CN Severino on Twitter. Carrie, thank you so much for your timetoday. We really appreciate it.Thanks. Good five. You know.
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