Leaked Opinion Shows Not Just the End of Roe, but Conservatives' Delight in It

Something fundamental about the Supreme Court has changed in recent months. It is not simply that the Court has a conservative supermajority, although that is true enough. What is really striking is just how emboldened that conservative supermajority is—how willing to take on a number of deeply divisive culture-war issues; how blasé about making major decisions via the Court’s shadow docket; how open to making rapid, profound changes to long-standing precedent. Last night, when Politico released a leaked February draft of an opinion by Justice Samuel Alito that would reverse Roe v. Wade, the landmark decision recognizing the right to choose abortion, the public got its most arresting taste thus far of just what this conservative bloc could do.

This morning the Supreme Court confirmed the authenticity of Politico’s draft. Even so, there are reasons to proceed with caution: A final decision is still not expected until June, and the language or even the conclusion of the opinion could yet change. But even with that caveat in mind, the draft is evidence of the brazenness of this majority—all in line with what many expected after oral argument in the Dobbs case in December.

This draft reads like the work of a conservative majority driven by an absolute conviction that Roe v. Wade is egregiously, historically wrong—comparable to support for racial segregation. The draft claims that the justices cannot predict the consequences of their actions and, even if such a prediction were possible, shouldn’t care what the public thinks anyway. The job of the Supreme Court, Alito suggests in the draft, is to say what the law is, not to care about what the people think, much less what the people think the Constitution means. (Politico is reporting that four other conservative justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—are likely to join Alito’s opinion, though that may change between now and when the final decision comes down.)

That the conservative majority could make such an argument—that it could believe such an idea—is a product of America’s grievous polarization. This majority knows that it will be celebrated by the conservative legal movement and the leaders of the Republican Party.