The Supreme Court Tips Its Hand

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S1: Slate’s Dahlia Lithwick didn’t expect to be talking about a Supreme Court opinion this week. She was off to a conference, but then.

S2: You know, my phone started going, bing, bing, bing, bing, bing, bing. And like most people, I just I really thought my first impulse was Politico got worked. It’s just not possible because this has never happened.

S1: And the leaked opinion that Politico dropped this week is big Justice Samuel Alito arguing that Roe versus Wade, the precedent that makes getting an abortion legal in this country, should be overturned.

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S2: To see a 98 page draft opinion with all the appendices, with the stamp of the court on it in advance of a decision day is is absolutely unprecedented.

S1: Yeah, it was a tremendous flex to drop the entire draft opinion because you can’t look at it and not think like, oh yeah, that’s that’s a draft opinion. Yeah.

S2: I want to be really clear. I mean, I’ve known Josh Gerstein for a long time.

S1: Josh Gerstein, he’s the guy who reported this.

S2: He’s one of the two at Politico who published it. And my after my first thought, which was This Can’t Be True, was if Josh has it, you know, this is a credible enough source for me. And as you say, once you looked at it, this was meticulously researched. This is not you know, if somebody was doing a deepfake, this was an extraordinary deepfake.

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S1: Dear listener, this was not a deepfake. The Supreme Court confirmed that this opinion, while not final, is the real deal drawn up back in February and passed around the court. It decides a case called Dobbs versus Jackson Women’s Health. It upholds Mississippi’s 15 week abortion ban.

S2: These first draft opinions are like opening bids, right? I mean, so you go for broke because you put in everything you want with the understanding that as you go through the editing process, you know, one of the justices in the majority is going to say, I just can’t live with that footnote. It’s got to come out. Or, you know, that language in page four is too strong. We should be clear, this is stamped from February, so it’s probably already gone through several of those power washes.

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S1: Which means that this opinion could change significantly. So why is it important to take this draft seriously anyway?

S2: It’s not as though after oral argument, all nine justices scatter and each write their own draft opinion. They immediately go into conference and they do a straw poll and they get a sense of, okay, you know, how is the voting going to go? This was probably five four, six three. So we have a vote count. Now, the justices walked out of that conference saying there are five votes to overturn Roe v Wade.

S1: Today on the show, the Supreme Court tips its hand. For now, abortion is still a constitutional right, but this opinion suggests that might not be the case much longer. I’m Mary Harris. You’re listening to What Next? Stick around. Back in December, the Supreme Court heard oral arguments for this Mississippi case, Dobbs versus Jackson Women’s Health. And as Dahlia listened in. Something became clear to her the members of the conservative wing of the court, they were gearing up to overturn Roe v Wade, which was kind of surprising given the incrementalism of the court under Chief Justice John Roberts. It was also surprising because there was an obvious compromise on the table. The justices could uphold Mississippi’s 15 week abortion ban, but leave the fundamental right to abortion in place that would preserve court precedent in cases like Roe v Wade. But also Planned Parenthood versus Casey.

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S2: A lot of people thought the court would go small. Or at least not go huge. And what was very manifest at the argument was that John Roberts was alone. He had no takers on the conservative wing of the court. It was clear he was trying to push for a compromise in which absolutely nobody but John Roberts had any interest. And to me, that was a really singular moment in which I became aware that he had lost the court. Not only is his vote not going to be determinative, but the zeitgeisty that John Roberts has always brought, which is let’s be incrementalist. Let’s try to look as though we’re doing something plausible and high minded and nonpartisan. Let’s try to appear as though we are sticking to precedent, even if we’re gutting it. That’s been his M.O. since he’s been on the court and he’s got no takers anymore. He can’t even persuade somebody who we were told would be apt to modulate the extremism. So a Barrett or a Kavanaugh? After Dobbs, it was clear he had no sway over any of them.

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S1: To me, it felt like a coming out party for Justice Kavanaugh and Justice Amy Coney Barrett, because they were really laying out their opinions and why they felt so strongly. You saw Amy Coney Barrett talking about, well, women could just give up their babies for adoption if they don’t want to have or raise them. You had Brett Kavanaugh, you know, really putting out there the idea of, well, if we overturn Roe versus Wade, it’s not like we’re doing anything to abortion. We’re just saying it’s not in the Constitution, but the states can decide what they want. So it’s a little bit of a like we didn’t break it. We’re just, you know, call in the ball here.

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S2: Right. Right. And that was really, really marked in Justice Kavanaugh, who kept saying, you know, oh, first of all, you know, the court overturns bad precedent all the time. Like, let’s just, you know, talk about Plessy versus Ferguson, because if a case is wrongly decided, you know, that’s what we do. That’s our job. You know, it’s nowhere in the Constitution. Let’s just kick it back to the states. You know, people will differ, reasonable minds will differ on this. And so what are we doing inserting ourselves, which is, of course, insane, if you think, you know, that was also plausibly the answer to the anti-miscegenation, you know, the interracial marriage case or to Brown v board. You could have said, oh, this is causing a lot of roiling dispute. Let’s leave it to the states to decide. That’s generally not how we decide constitutional questions.

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S1: Right. If the states are roiling the whole job at the Supreme Court is to get in there.

S2: Right. And certainly, if there is, you know, minority interest that is nevertheless entrenched in the Constitution, it’s the job of the court to say, I don’t much care if you don’t want to, you know, desegregate your schools. This is this is enshrined in our founding documents. I think there’s a way in which this faux reasonable man approach is a way of saying, no, no, we are being a humble, minimalist court doing a little error correction. They really blew it in 73. But we’re not in any way harming women. We’re not setting anyone back because we’re just returning it to the states. And really, the essential thing to understand here, it’s been said a bunch around this case, but it will be the first time in history that the court actually takes away a right on which people have, you know, depended for 50 years. I mean, this is the court actually constricting freedom, not expanding it in overturning a case. And it’s also, I think, really, really notable in the opinion that women in their lives and their welfare and their equality, by the way, are just third order concerns, if their concerns at all.

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S1: Well, they’re just kind of missing. Like, if you look at this opinion, first of all, it’s interesting because I’m used to kind of mealy mouthed Supreme Court opinions or like overly complicated ones that I don’t quite get. And this is not that. This just flat out says Roe versus Wade was egregiously wrong from the start. And we’re going to fix it, essentially. Which, I mean, are are. I’m not used to that language. Are you?

S2: Well, it’s this is how Alito writes what really leaks out of every page here is Alito’s very classic sense of aggrievement and, you know, victimization and suffering that. How come they just left this massive bunch of crappy doctrine at my feet to fix and, you know, lots of references to abortionists, right? I mean, that word again and again and again, which.

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S1: Is a term that someone like John Roberts doesn’t like to use. He says abortion providers when he is writing opinions like this. Right.

S2: Right. No. I mean, Alito, I think, is, you know, his Tell Mary is how close to sort of Alex Jones Rush Limbaugh speech he’s willing to allow into his opinions. And we see it very frequently in dissents where he’s just, you know, roaring into the wind. And this doesn’t read like I mean, I think it wants to be a thoughtful, scholarly meditation on how, you know, the right to abortion is nowhere in the Constitution. And if you look at the time of the founding, it was simply not protected. But at every opportunity, as you say, given the chance to soften the language, to use the not AM radio talk show words, he opts to use them. My sense of it is that he wouldn’t have swung for the fences like this, Justice Alito, if he didn’t have the five votes to do exactly this. But more likely, some of this language gets pulled out to mollify Kavanaugh and Barrett, who might think this this reads kind of Haiti. Although I do think a lot of the whispers about why this was leaked has to do with was there some way either either because one of the conservative justices leaked it to make sure they don’t go squishy or a liberal justice leaked it to help them understand how catastrophic this would be, whatever version of the whispers you buy into. I think there is some reason to think the leak happened because there was a sense that both Kavanaugh and Barrett might not quite, quite be as brave as Justice Alito opinion suggests.

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S1: Interesting. I mean, let’s talk about the question of who leaked it, because, of course, as soon as this came out like that was the second question on a lot of people’s minds. And I have to say, I was a little surprised by how much this question took over conservative media, like you saw Laura Ingraham basically demanding that Supreme Court clerks be searched.

S3: So the just the chief justice, it’s incumbent upon him to bring every law clerk before him or the FBI. Give me your phone. We want all your accounts. We have to do our own. Look at every device that you’ve ever used and find out who did this.

S1: James It surprised me, I guess, because I was like, Well, hold it. This is the decision. I thought you wanted to. Why all of this hubbub about a leak, it’s just going to come out in a couple of months.

S2: I think there’s a couple of answers. My purely cynical spitball is that all of that is a good deflection away from the merits. Right. If you can turn this into a scandal about how it happened, maybe people won’t notice that, you know, in 22 states, women will functionally lose the right to have, you know, autonomous decision making power over their bodies. So I think one that’s one cynical explanation is that for the conservatives, it’s a way of saying squirrel, you know, let’s talk about this other thing. I will say and I wrote this on Monday night when the leak first happened, law clerks at the Supreme Court, I mean, it’s a tiny number of clerks and they are well aware they will never work in this town again if it is on them. I don’t think any of them would do something like this unauthorized. It’s just not done. And the larger culture of secrecy at the court and trust is so essential to the functioning of the institution that the reason we don’t get leaks in this order of magnitude is because the court as an institution will collapse if you get leaks of this magnitude. And so that’s just my way of saying that. With all due respect, you know, to Laura Ingraham and the FBI, she’s not wrong. On the one fundamental point which is nothing more terrible could happen to the court that relies on its own trust and camaraderie and its own belief in its own systems than to have a leak like this. There is no way John Roberts can get control of his court. Back after this. And so it’s not misplaced to be deeply, deeply worried about what this does to the power and prestige and legitimacy of the court. We need a functioning court that the public trusts. And it’s not clear to me how the court can operate in the wake of what just happened.

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S1: That’s interesting. I mean, I’m glad you brought up Chief Justice John Roberts, because one of the most interesting theories about who leaked this document and why has to do with him. Because, like just a few days ago, The Wall Street Journal published this op ed, basically fretting that John Roberts might be able to pull another justice to his side, which is this moderate side, this side of let’s not totally overturn Roe, let’s maybe do something in between and saying, you know, the now isn’t the time for that, essentially. And I’ve seen arguments that part of the reason this might have been leaked was to basically prevent that, to basically say to the other justices, man up the opinions out there, you know, stick to your guns.

S2: Yeah. No, I think the theory of why this would have come from one of the conservative justices was exactly that was to lock in Barrett and Kavanaugh so that there was no way they would squish. And I think that’s a decent theory. I think, you know, the follow on leak about what John Roberts has been thinking is in that sense, the most intriguing part of this, because it was a leak on top of a leak. And this is.

S1: CNN reported after after this document came out. Oh, by the way, Chief Justice John Roberts, he’s not part of this opinion from Alito, and he wants to do a 15 week abortion ban, you know, so he doesn’t want to totally ban abortion just a little bit on abortion.

S2: Yeah, he was he was prepared to uphold this Mississippi law, but he was not prepared to overturn Roe in this opinion. And that fact that that second leak came out is almost as shocking. It kind of got lost in the whirlwind, but it’s almost as shocking as the initially, because it certainly suggests that there are multiple leakers at the court. And it certainly suggests that if it were John Roberts who was leaking any of this, which I really, really find doubtful, I just think, you know, the. Guy is a straight, straight arrow, and I cannot imagine him, you know, whispering to reporters. But I do think that there is just absolute resonant awareness that what John Roberts wants and thinks is irrelevant, that this is yet another. I mean, I was laughing with our Ed team, Mary, about how many times we’ve written the piece. John Roberts has lost his court. I mean, I’d love to go back and count, but this.

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S1: But it sounds like you’re saying now he he really has it’s it’s over.

S2: And I think that there is a little bit of an attempt here, possibly, if it was a conservative leaker, to have all the outrage and horror happen in May as opposed to July, because it’s just that much further from the midterms in that sense. I think of SBA, the Texas decision that happened on the shadow docket was a little bit of a preview for this, which is if we test the waters, if we just get Americans used to the notion that effective September one, 20, 21, 10% of the people of childbearing age in the United States cannot get an abortion. And we all lived with that until May 1st, 2022. Then this is just another. Right. This is the frogs in the pot theory. Okay. Well, in blue states, you’ll still be able to get an abortion. So, you know, maybe by the time the midterms roll around, people will will be sanguine about what happened. It won’t seem that bad. I know that seems a little bit cynical and grim, but it does feel to me as though part of what this is trying to do is get people to normalize and integrate something horrifying and get up tomorrow and move on.

S1: Back with Dahlia after a quick break. I want to make some time to talk about the basis of this draft opinion. I think it’s really important to understand the Roe versus Wade decision is is based on the 14th Amendment right. Lay out for me a little bit what the 14th Amendment does.

S2: Well, the 14th Amendment right is drafted to correct for the sins of chattel slavery. The folks who are writing this 14th Amendment are thinking in terms of what does it mean to be free if you presumably have all of the protections in the Bill of Rights, and yet you have come out of a system of chattel slavery. Right. What they are talking about is fundamentally this idea of you cannot be free if you cannot marry who you want to marry because slaves could not you cannot live with the person that you are bound to in marriage because slaves were not. You cannot control your reproductive life because after the slave trade, trade ended right the way you perpetuated slavery was by raping your slaves. All of the things that we either did to slaves or took away from slaves in order to perpetuate slavery. Those are the definitional hallmarks of what it is to be free. If you think about the freedoms that are supposed to be guaranteed in the 14th Amendment. And that’s a really high minded way of saying that this idea of family autonomy and bodily autonomy and being able to raise your own children in your home the way you want. Those are the hallmarks of this notion of what unenumerated rights, substantive due process are. And the line of cases marry is so important that the arc really begins with cases about your kid. You have a right to educate your kid the way you want to.

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S1: And these are cases before the Supreme Court that were argued and rights were put into place.

S2: Right. These are all cases that are rooted in this idea that liberty and freedom under the 14th Amendment, under the substantive due process clause, has to do with the rights to construct your family the way you want. You cannot lose custody of your children willy nilly as a father. You cannot be sterilized. All of these come up again under this umbrella of rights that say that the family is the ordering unit of democracy and your family cannot be messed with by the state, that the way you order and organize your family and who you marry and how many children you have and how you raise them are the cornerstone of freedom. All of that lands us up in Loving versus Virginia. That’s the case that says that the anti-miscegenation laws, the laws that say you can’t marry somebody of a different race, those are unconstitutional because you get to pick who you marry. And then Griswold versus Connecticut, which is the constitutional right to use birth control within a marriage. That becomes really the the linchpin of Roe v Wade, which becomes the linchpin of Casey, which becomes the linchpin of Lawrence versus Texas, the case that sets away the gay sodomy bans. And then Obergefell right the right to marry the person of your choice, gay marriage. And so I really think that in some sense, progressives have done a terrible job of explaining what I just explained terribly to you, but explaining that these are not just fanciful, plucked out of thin air, you know. Oh, so now they want, you know, marriage equality. It is a whole line of cases that goes back to this deeply, deeply ingrained and I think shared, by the way, across ideologies set of values that you get to raise your kids and have the number of kids and marry the person you want to have, because to take away those rights is to be enslaved.

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S1: I think of it like a pyramid. You have the 14th Amendment at the bottom of the pyramid and then gradually writes through these Supreme Court cases are being built on top of that base. And I think what’s interesting and alarming about this draft opinion from Justice Alito is he’s beginning to pick away at the top of the pyramid. And he’s explicitly saying in this opinion, oh, well, you know, other rights, they’ll still exist, like, you know, interracial marriage still fine. You know, he’s still he’s he’s picking and choosing what he wants to be resting on that pyramid, but he’s beginning to pick away at it.

S2: I think the single most important takeaway for folks who are soothing themselves this week and saying, oh, that’s okay, it’s only half the states. And, you know, we’re thinking in terms of abortion funds and we’ll figure out how to get women to New York. And so it’s fixable is exactly what you just said, that you kind of can’t pull this Jenga piece out of the puzzle and have the edifice remain because it relies on, as you say, this foundational understanding of how we think about families and privacy and love and marriage and babies and, you know, educating our children. And if you pull this out and say, oh, Roe is rooted in nothing, then Obergefell is also rooted in nothing. The marriage equality case and the Loving versus Virginia, the racial interracial marriage case is also rooted in nothing. And so it’s lovely for him to say, pay no attention to the Jenga piece I’m pulling out. The building will stand. But what he’s saying is that the building is built on nothing and so it cannot stand. That’s the tale, my view, as soon as they’re telling you we’re not coming for them, but we’re coming for their doctrinal underpinnings, you should be very afraid. And this is where I think it’s really important to slash things like birth control, like things like marriage equality back to the what we’re seeing happening in the States. Right. Because what we are seeing happening is women being charged for, you know, fetal endangerment, you know, for miscarriages. We are seeing case after case where the idea of when life begins is starting earlier and earlier and earlier. And I just think we need to see this as part of a larger context, not just of doing away with abortion, but making claims about when life begins that we’re already seeing playing out in the States in ways that are, not surprisingly, going to fall hardest on poor women, young women, black women, brown women, you know, women who have addictions and other problems. This is going to hit them in ways that I think we haven’t contemplated if we’re just looking at this as the end of Roe.

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S1: And if an opinion like this was finalized and released, abortion would become illegal in nearly half of the states. It’s my understanding.

S2: I think 22 states I mean, there’s there are states that have trigger laws and then there are states that have trigger laws that have not full on bans. But I think that we are looking at approximately half the states. We saw The Washington Post reporting on a real push now for a federal abortion ban. That is, I think, the next battlefield for the conservative legal movement.

S1: I mean, previous justices, people like Sandra Day O’Connor, they warned that the Supreme Court would pay a terrible price for overruling Roe. Do you think the justices. Who are looking at this draft opinion from Alito. Or considering that warning.

S2: I mean, I think that’s the that’s always been the bargain. Right. That was always the the pledge was that if the court did this, there would be massive consequences. And so I think the question you’re asking me is, does the thing that we want to come true and always believed would come true. Which is that there be a huge transformational backlash if this ever happened. Is that going to come true? And I think that that’s not for me or you to answer. I think it’s for the folks who are watching this happen and can’t quite believe it occurred. It’s for them to determine if, in fact, this is going to happen with no consequences.

S1: Dahlia Lithwick. I’m really grateful for you jumping on the show.

S2: Thank you, Mary. Thanks for having me.

S1: Dahlia Lithwick writes about the Supreme Court for Slate. I cannot recommend enough that you go check out her podcast, Amicus. And if you enjoyed today’s show, you’re going to want to go check out an episode she did back in April. It’s called Fundamental Rights Doublespeak. It’s all about the 14th Amendment and these little changes that really could add up. Before we go, I need to make a quick correction. Yesterday we aired an interview with Michigan State Senator Mallory McMorrow. She lives in Royal Oak, not Grand Oak. We really regret the error. But you know what? It is still a good interview. So go check it out. All right. That’s the show. What next is produced by Carmel Delshad Alan Schwarz and Mary Wilson. We’re getting a little help these days from Sam Kim and Anna Rubanova, and we are led by Alicia montgomery and Joanne Levine. I’m Mary Harris. I will catch you back here tomorrow.