Friday, May 6, 2022

The Media Fails to Ask the Obvious Question: Why Wasn't a Newer Draft of the Alito Proposed Abortion Opinion Leaked?

The day I heard about the leaked Justice Alito opinion on abortion, my immediate response was: "Where are the other drafts?"  Yet nobody in the media seems to be asking this most obvious question.

Here's the thing.  News about the leaked opinion broke on May 3rd, almost three months after Alito's draft which was dated February 10th.  While I have not worked at the United States Supreme Court,  I have clerked for an appellate judge.  The judge who was assigned the task of drafting the appellate opinion goes through numerous drafts that would be circulated among the other two judges deciding the case.  The judge tries to get to a majority and, if possible, unanimity. 

When it comes to the United States Supreme Court, the process would be like I described, except on steroids.  Revising and re-circulating drafts would drag on for months.  There would also be competing opinions circulated among the justices that could end up being concurring opinions, dissents, or even the majority opinion.  The goal is to get five justices who will line up in support of a draft, more than five if possible.

The leaker is probably not a justice, but more likely a judicial clerk or other employee of the Court.  The person certainly would have access to all the draft opinions, but chose instead to leak a draft that is almost three months old.  Why would that be?

No doubt the leaker's motivation was politics, a desire to undercut justices who are wanting to overturn Roe v. Wade.  But that still begs the question of why not instead leak a more recent draft of that opinion?

The answer is obvious...the more recent drafts do not advance that political agenda as well as the February 10th draft.  In short, the later drafts likely sounded more moderate and, thus, were not as useful to the leaker.  Perhaps even Chief Justice Roberts' compromise has won out and a majority only want to modify Roe by approving the Mississippi's ban on abortion after 15 weeks.

We don't know where the Court is going on the abortion issue. But it would behoove the media to ask the obvious question about why an old draft of an opinion was circulated instead of a newer one.  

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