The draft majority opinion in the Supreme Court abortion case has serious implications beyond the holding, important as that is. These implications concern how the court operates under political pressure.
What would the motive be for making this draft opinion public?
Given a five justice majority, one likely goal is to shake loose at least one justice by creating a preview of negative public reaction. Already, we have seen political opportunism surface. President Biden’s immediate reaction was to call for the election of more Democratic senators this November, promising that such senators would vote to confirm only pro-choice judicial nominees going forward.
When the actual opinion is eventually published, we can expect this argument to be foremost in the Democratic Senate Campaign Committee’s strategy, even if one or more Justices are pressured to defect from the fragile majority of five. Roe v. Wade is now in the 2022 election.
What are the chances that one justice would change her or his mind? Justices have changed their vote between the conference held the week of the oral argument and the date of the eventual decision. This famously happened in Brown v. Board of Education, ending segregation. Five justices initially were willing to uphold “separate but equal.”
It took the formidable persuasive efforts of the new Chief Justice, Earl Warren, to produce a unanimous opinion striking it down.
So, if a firestorm of criticism follows in the next few weeks, and a justice in the majority feels uncomfortable, perhaps a change could occur.
To a more politically-minded justice, as the consequence becomes more apparent that reversing Roe v. Wade would stymie a likely Republican victory this November, perhaps a middle ground might seem more appealing.
That middle ground was strongly suggested by Chief Justice Roberts in oral argument. Preserve a woman’s right to choose to have an abortion but hold that the 15 weeks Mississippi affords her is adequate time to make that decision. That view, added to the three liberal justices who will vote to affirm Roe, would constitute a majority of five, leaving Justice Alito as the author of a dissent instead of the court’s majority opinion. Some Supreme Court dissents in 5-to-4 cases read like they were originally drafted as majority opinions – because they were.
If Justice Kavanagh or Gorsuch were to join Chief Justice Roberts, their opinion could truthfully say “A majority of the court today upholds a woman’s right to choose whether to have an abortion.” That would substitute for the phrase in the current majority opinion: “Roe was egregiously wrong from the start.” Either characterization would allow Mississippi’s law to stand, pleasing the pro-life voters, but the former formulation would deny the Democrats a powerful tag line in the November contests.
Justice Alito’s draft does not ban abortions. It allows the states to do so but does not prevent Congress from passing a law pre-empting the states. The abortion question thus moves from the courts to the Congress and the state legislatures, to be decided by persons whom we elect in an overtly political process, rather than by justices who have been pressured to act politically.
Tom Campbell is a professor of law and a professor of economics at Chapman University. He served as a law clerk to U.S. Supreme Court Justice Byron White. He was also a congressman for five terms, serving on the Judiciary Committee. He left the Republican party in 2016 and is in process of forming a new political party in California, the Common Sense Party.
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