What if Roe *doesn't* fall?
It's likely but not a done deal - and that could have some serious consequences of its own.
In the future, everyone will be on Substack for fifteen minutes. I heartily welcome one of my favorite podcasts, The Fifth Column, to this platform after several years in Patreon purgatory. Kmele, Matt and Moynihan must feel like George Russell signing with the Mercedes F1 team after several years driving backmarker cars.
On second thought, maybe that’s not the best analogy.
Anyhoo, their first podcast hosted by Substack includes a very interesting discussion with Damon Root about the leaked SCOTUS decision which purports to overturn Roe v. Wade. Root believes Roe is likely not long for this world, but concedes that the final decision could be very different, and that the draft may very well have been leaked by a conservative clerk or staffer trying to “freeze” the decision in place or to show what might have been, with one or more Justices having flipped.
Veteran NPR legal reporter Nina Totenberg, meanwhile, strongly believes the leaker was a conservative:
Appearing on ABC’s This Week Sunday, Totenberg posited that a conservative clerk’s likely motive was to prevent one of the conservative justices from being persuaded by Chief Justice John Roberts to issue a more narrow ruling in the case.
“The leading theory is a conservative clerk, who was afraid that one of the conservatives might be persuaded by Chief Justice Roberts to join a much more moderate opinion,” Totenberg said.
The NPR reporter acknowledged the possibility of a liberal clerk being responsible, but dismissed that theory as implausible.
“There’s another theory that it was an outraged liberal clerk,” Totenberg said. “But I think the only one that makes sense is that it came from somebody who was afraid that this majority might not hold. That Chief Justice Roberts might persuade one of the conservatives come over to him in a much more moderate opinion.
She added that it’s “very unlikely” the identity of the leaker will ever be discovered.
Obviously, we won’t know until we know. It could have been a custodian who found the draft in a garbage can and thought it might be worth something.1
Everyone assumes the final decision will look a lot like the leaked draft, and the smart money says Roe will be overturned. (More recent leaks suggest the majority is holding. Whether it’s Alito’s draft that carries the day is another question.) And pretty much everybody has speculated about what this will mean for women trying to access abortion, and the political landscape.
But if the last few years have taught us anything, it’s that nothing ever really happens as planned. It’s still possible that a Justice who initally backed Alito’s draft decision has flipped to a more moderate position reportedly held by Chief Justice Roberts, which would attempt to thread the needle of upholding the Mississippi law at the heart of the case without overturning Roe altogether.
This draft was from February. A lot can change in a few months.
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