The fact that Justice Samuel A. Alito Jr. authored the draft is a sign Justice Clarence Thomas, the longest-serving member of the court and the only one to write that he would overturn Roe, asserted his seniority to choose who would get the job. In Alito’s more than 16 years on the Supreme Court, he has supported every government restriction on abortion that has come before him.
WaPo
Thomas may be ignorant, but he's not stupid. Why write that monster himself and take the heat?
It is another signal that the 67-year-old Roberts, hailed by scholars just a few years ago as one of the most powerful chief justices in history, is not in control of the process as the court readies its most influential decision in decades.
[...]
Overturning Roe would mark the culmination of decades of work by the conservative legal movement. This is a tense, even ominous, moment at the court, where justices are circulating drafts of opinions and dissents. A final decision could come at any time before the court finishes its work at the end of June or early July.
There are indications of extraordinary security measures for the justices. An “unscalable” black fence has been erected around the court in anticipation of protests to come. Alito canceled an appearance last week at a conference for judges and lawyers in Nashville. Those who do travel do so only with heightened security details.
[...]
Roberts has sometimes sided with the liberals in some [justice] disputes, particularly when he thought the authority or reputation of the court was at stake.
Now that's a very interesting statement. That implies, in my mind, that he believes the liberals are right on questions of the law.
His incremental approach was evident when the court held oral arguments in December in Dobbs v. Jackson Women’s Health Organization. It concerns the Mississippi law, which has never gone into effect, banning almost all abortions after 15 weeks of pregnancy.
Roberts seemed to get no takers for a compromise that would erase the clear rule that Roe and Casey share, which is that states may not forbid abortions before viability, the point at which a fetus would survive outside the womb, usually 22 to 24 weeks.
[...]
The leaked draft opinion is dated in February and is almost surely obsolete now, as justices have had time to offer dissents and revisions. But as of last week, the majority of five justices to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter.
AKA leaking.
A person close to the most conservative members of the court said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now. But the other conservatives were more interested in an opinion that overturned the precedents, the person said.
[...]
The conservative Wall Street Journal editorial page made similar points in a recent column that warned Roberts was trying to coax Kavanaugh and Barrett to join him.
If so, that points most likely to a conservative (perhaps a staffer - perhaps at the behest of a judge) on the court leaking that first draft in order to box Kavanaugh and Barrett into a corner. Perhaps one of them was leaning toward Roberts, but after the leak would feel compelled to stay on Alito's side not to appear cowed or influenced by public opinion.
“This is a historic, unprecedented, and tragic breach of the Supreme Court’s confidential deliberative process,” said Michael Luttig, a retired appellate judge and leader in the conservative legal community. “And unfortunately, it comes at time when the Supreme Court’s very legitimacy is being questioned.”
Luttig said the court “can never recover” from the sharing of the draft, an act that solidifies the growing public suspicion that politics rather than objective adherence to law infuses the court’s work.
“One has to believe the leaker of this draft opinion disgracefully intended to feed and drive the developing narrative of the court’s illegitimacy,” he said. “Whatever his or her motive, it is a breathtaking act of dishonor and betrayal of our highest court and of our country.”
And it's true: the court
is illegitimate. McConnell saw to that with his shenanigans that gave Trump three appointments.
...but hey, do what you want...you will anyway.
