On Monday evening, Politico published a draft of a Supreme Court majority opinion written by Justice Samuel Alito that would overturn Roe v. Wade, the landmark 1973 decision that guaranteed a constitutional right to abortion in certain circumstances, and limited the ability of states to ban abortion procedures. In the draft, Alito writes that the Constitution makes “no reference to abortion, and no such right is implicitly protected by any constitutional provision. . . . The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” Justices Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett have reportedly sided with Alito. (The Justices are able to alter their initial votes, but there is no evidence that any of them are likely to do so.)
To talk about what this means, and how the draft itself came to be written and leaked, I spoke by phone with Neal Katyal, the former Acting Solicitor General of the United States and a professor of constitutional law at Georgetown. During our conversation, which has been edited for length and clarity, we discussed Alito’s judicial philosophy, why the Justices are unlikely to change their votes in a case like this, and whether liberals erred in supporting the confirmations of Trump-appointed Justices.
Can you walk us through the process of how this document came to be and what exactly it is?
What happened is that the Supreme Court agreed to hear a case last year on Mississippi, which has a fifteen-week abortion ban, with no rape or incest exception. Then there was a briefing and oral argument, and at that oral argument the Justices asked everyone tough questions, and sometimes you can see where things are heading. It is never a perfect predictor. But you can generally see. And there was a lot of skepticism for Roe and support for the Mississippi law from at least five and maybe six Justices at the oral argument. So after the oral argument the Justices go and meet in a conference. Only the nine of them. No law clerks or anyone allowed. And they take a tentative vote of who is going to win and why they should win, going around one by one and explaining their views.
The Justice who is the senior-most Justice in the majority can decide to keep the opinion for himself or herself or can assign the opinion to another Justice. The typical rule of thumb is that if it is a really exciting opinion you want to keep it for yourself, and if it is a less exciting one, you assign it to someone else. But that doesn’t always happen, and sometimes there are reasons—even strategic reasons—why you would want someone specific to write it. And here, the Chief Justice [John Roberts], as the senior-most Justice presiding over the conference of nine—it’s almost inconceivable to think that if he was in the majority he would have assigned the opinion to anyone but himself. He loves the Court as an institution. He would want to speak with the authority of the Chief Justice. The most senior Justice in the majority would be Clarence Thomas, so my sense is that he assigned it to Justice Alito.
Why might that be?
One can only speculate, but, in a hot-button case like this, Justice Thomas might have felt like he shouldn’t be the person who was out front. The author of this opinion is going to be singled out, just like the author of Roe. v. Wade, Harry Blackmun, got singled out. And Justice Thomas, his style—
His leadership on women’s rights?
His style is generally to write opinions for himself that try to move the law in a certain direction, but he is not as much a writer of big opinions for the Court and his colleagues. So it’s not surprising.
How does the draft come to be?
They have been in conference, and gone around and given their views for some period of time, anywhere from five to fifteen minutes, and then the draft opinion is assigned, and then the author would take the comments from the conference of nine Justices, and start writing an opinion that tries to reflect where a majority of five of them are. And then he would do that for as long as that takes—here, it looks like for a couple of months—and then he circulates that draft not just to the five that voted with him but to all nine. And that’s what it looks like we have: the first draft of the opinion after the conference vote.
So then that draft gets circulated and the senior-most Justice in dissent assigns the dissent to himself or someone else. Here the senior-most Justice would be either [Stephen] Breyer or the Chief Justice, if he is dissenting. And they would start writing their opinion. Sometimes you would have a give-and-take, between the dissent and the majority, where the dissent says something really powerful and the majority thinks, That makes a good point. Maybe I should take out that point or maybe I should have modified my opinion. Every so often, it is at least theoretically possible that someone who voted with the majority could think, I voted wrongly in conference and changed my mind.
Is this—or something similar—what happened with Roberts and Obamacare?
That’s what the reporting indicates. I don’t know if that’s right or wrong, but there is certainly a lot of reporting saying that that happened with Roberts, and some people are clinging to hope that that will happen here. It is theoretically possible, but there is a big difference between this and Obamacare. There, the Chief Justice was the fifth vote to uphold President [Barack] Obama’s signature initiative, the Affordable Care Act. Here, the Chief Justice is potentially irrelevant. And so, for the bottom-line decision to change, one of the four of Thomas, Kavanaugh, Gorsuch, or Coney Barrett would have to change their vote, which for any number of reasons is not that likely.
So even if this is a first draft, it would be fairly rare for a serious shift on a case like this?
Yeah, and particularly because this isn’t some random obscure area of law that the Justices haven’t thought about. Every one of these Justices has thought about this since law school.
You are forgetting Clarence Thomas saying in his confirmation hearings that he had never given Roe v. Wade much thought.
Exactly. [Laughs.] That’s a very good point. You got me there.
What did you make of the document itself—and its arguments? Did it reflect Alito’s style and values generally?
It a hundred per cent reflected Alito’s comments at oral argument, right down to the test that he uses to determine whether there is a constitutional right. The question he says the Court should ask is whether the right is firmly rooted in the traditions of the people. And that has always been a controversial way of understanding things, because rights exist in our society at a broader level of abstraction. You don’t say, “Was there a right to abortion in 1787? Was there a right to contraception in 1787?” You ask it at a more general level about the degree of personal autonomy and freedom. But Alito turns the clock back on all of that and says that is not the test. And that is what this opinion says, page after page. It reads like an opinion from Robert Bork, the failed Reagan nominee for the Court, in 1987, who didn’t get confirmed because of exactly this issue. Robert Bork thought there was no general right to privacy, and rights had to be firmly rooted in the traditions of the people, and the right to use contraception, even if you are a married couple, was not something that existed in 1787. And that, to put it mildly, is not just an outdated but also wrong account of what our Founders gave us.