The bombshell leak of the draft opinion in the Dobbs case is already having major consequences in Washington, D.C. with Supreme Court Chief Justice John Roberts weighing bringing in the FBI to investigate who gave a copy of the opinion to POLITICO weeks before the official opinion was expected to drop. The leak may not change much about the eventual outcome of the case (though there’s speculation that was the actual intent of the leak), but it will definitely re-invigorate the calls from Democrats to nuke the filibuster and pack the Court with progressive justices; something not likely to happen between now and November but a near certainty if Democrats manage to hang on to their majorities in the midterms.
I’d say that’s also not likely to happen, at least at the moment, but I do expect it to now become a major campaign talking point for much of the Left between now and November. And if Roe is overturned by the Dobbs opinion, you can better believe that the pro-Second Amendment decisions in Heller, McDonald, and (hopefully) the upcoming Bruen case will all be targeted by Democrats hoping to overturn them once they have a majority on the Court.
Meanwhile, the long-held secrecy surrounding the Court’s deliberations is starting to show some serious cracks. Not only do we have the release of the draft opinion, but as my friend and colleague Ed Morrissey points out at HotAir, there are some secondary leaks.around the Dobbs decision that are starting to emerge.
First someone leaks a draft opinion to Politico, and now insiders are leaking about SCOTUS deliberations and negotiations to CNN. The issue of abortion has apparently transformed the Supreme Court into the Sieve Court. With an apparent 5-3 lineup set to overturn Roe based on Justice Samuel Alito’s draft majority opinion in Dobbs, Chief Justice John Roberts has reportedly argued to retain Roewhile dumping Casey as a compromise position.
… I suggested this very scenario last night when the 5-3 number first came up, but not because anyone passed along any choice SCOTUS gossip. One of the few privileges of the Chief Justice is that Roberts can choose to author any majority opinion on which he concurs, having a sort of “super seniority” in that sense. Otherwise, the option of writing the opinion would normally fall to the most senior justice in concurrence with the majority. The Chief Justice has the authority to assign the task to someone else, however, if he is in the majority. (Similar rules/traditions operate in combined dissents.)
If Samuel Alito is drafting the majority opinion, then it follows that either Roberts doesn’t concur orthat Roberts specifically wanted Alito to author the governing opinion. But why would Roberts, perhaps the most politically sensitive justice in the current court, want a hardliner like Alito to write it? If Roberts concurred, then he himself would be the natural choice if Roberts wanted to moderate or at least modulate the governing precedent. Alternately, Roberts would likely have chosen Barrett to write the opinion if he opted out in order to have a woman author the opinion.
A couple of things worth speculating about here. First, if Alito is the author of the Dobbs opinion, that takes him off the table as a potential author of the majority opinion in Bruen. That still leaves several justices who’ve been unsparing in their criticism of the lower courts’ misreading of Heller and McDonald in order to uphold a variety of gun control laws around the country, but it also leaves open the possibility that Roberts himself may be writing the opinion.
If Roberts is trying to find some sort of middle ground on Dobbs, could he try to do the same thing in Bruen? More importantly, could he twist enough arms to go along with a decision that, say, recognizes the right to bear arms but declares that dense urban cities like New York are “sensitive places” where the right to carry can be curtailed, even while overturning New York’s “may issue” carry permitting laws?
My guess is that he can try, but I don’t think he’ll be successful. If the votes are truly there to overturn Roe v. Wade, then I would expect that the votes are there for a strong pro-Second Amendment opinion in Bruen. And honestly, I wouldn’t be surprised to see a split opinion, with Roberts joining the majority on some points while disagreeing on other aspects of the ruling. Either way, we’ll soon learn what the Court has to say about the right to bear arms in self-defense… and with the leaks coming out from SCOTUS we might not even have to wait until the opinion is formally released (likely in early June).