How close to a final ruling is Alito’s draft to overturn Roe v. Wade?

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How close to a final ruling is Alito’s Roe v. Wade draft?

The leaked 90-page draft opinion striking down Roe v. Wade caused a huge stir — prompting protests, riling pundits and imploding social media.

Chief Justice John Roberts confirmed that the leaked 90-page draft opinion striking down Roe v. Wade was real, but since Supreme Court opinions go through multiple rounds of revisions, the question remains how close to final the Dobbs v. Jackson draft opinion actually is.

Here’s a look at the process by which a Supreme Court decision is drafted, finalized and released.

Who gets to write the majority opinion?

Todd Peppers, a law professor at Washington and Lee University School of Law, who has written several books on the inner workings of the Supreme Court, told Grid that typically the high court deliberates on a case after conducting oral arguments in private. “It’s a pretty secretive process,” Peppers explained. “The only people in the room are the nine justices.”

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If the chief justice sides with the majority, tradition states that they write the majority opinion. In this case, Roberts has so far abstained from voting, so the next senior justice, Justice Clarence Thomas, would get to chose who gets the honors. He chose Justice Samuel Alito, who has taken a hard conservative stance on abortion, LGBT rights and religious liberty.

Once the majority opinion is drafted, other justices who agree with the majority’s conclusion but, either have a different reasoning for reaching that conclusion or have a specific point they would like to make that isn’t in the majority opinion, draft concurring opinions. At the same time, those in the minority start to draft their dissents. Justices from both sides then meet with their law clerks, according to Peppers, so the clerks can help write up each side’s opinion with feedback from each justice.

“The law clerk prepares the first draft, reviews it and then sends it back and forth” between the clerk and the justice, Peppers explained. “When the [chosen] justice is happy with how the opinions looks, [they] circulate it to the other justices on the winning side.”

Being careful not to lose a vote

From there, the draft is deliberated further among the justices to help the majority retain votes. “If it really is a five-four decision, Alito wants to make sure he writes the opinion in such a way that he doesn’t lose a vote because [a justice] can change [their] vote later on,” Peppers said. Justices can actually change their vote up until the decision is released to the public, he said.

“The practice of the Supreme Court is that justices sign on to opinions throughout an extended series of memos and drafts debating the result until the decision is set to come down,” Joe Kobylka, a political scientist at Southern Methodist University, said in an email.

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At this point, it’s unclear which version of the draft the public has seen, but Roberts claims the decision isn’t final. “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Supreme Court or the final position of any member on the issues in the case,” he said in a statement.

This has happened before

This isn’t the first time the Supreme Court has suffered a leak to the press. In 1979, for example, ABC TV reporter Tim O’Brien received leaked information about how the high court would rule on the libel case Herbert v. Lando.

The Supreme Court also suffered leaks in 1857, when President James Buchanan caught wind of the imminent Dred Scott decision, and in 1972, when a substantial amount of Justice William O. Douglas’s draft for the original Roe v. Wade decision was spilled to the press, according to Kobylka.

If the decision does end up being roughly the same as the draft, it will mark a rare moment in SCOTUS history. The high court typically avoids reversing established precedents to maintain its legitimacy, Maya Sen, a professor of public policy at Harvard University with a specialty on the Supreme Court, told Grid. “If the court reverses itself too much, it loses support among members of the public, but also among legal elites,” she explained. “So, if the court keeps overturning itself and declaring its previous cases invalid, then people are going to stop listening to them.”

Activists and commentators have called for the federal government to intervene. President Joe Biden himself vowed to codify Roe v. Wade in U.S. law during his election campaign. But according to experts, it’s not quite that simple.

Sen noted that the Supreme Court has final say on what’s constitutionally permissible, so the federal government can’t overturn their rulings.

They do, however, have some recourse: “It’s entirely possible that if the court says there’s no constitutional right to an abortion, the government could go in and say, well, we’re going to make it a federally-protected possibility,” she explained.

“This is a question of constitutional interpretation,” she said. “State and federal governments are always welcome to rewrite their statutes to avoid the constitutional problem.”

  • Kaila Philo
    Kaila Philo

    Government and Political Institutions Reporter

    Kaila Philo is a reporter at Grid where she focuses on the U.S. government and political institutions.