Draft Opinion by Alito - Supreme Court has voted to overturn Roe v. Wade

I cannot see how any of the justices have any room to complain.

They made their own bed.

I wonder if he’ll change his tune when he finds out it was his wife that leaked it, or if he already knows and that was intended as an underhanded insult.

I think he already knows, he approved, he possibly helped….and now he’s just indulging in the time honored practice of gaslighting the libs.

Side convo but this is inaccurate. On a Sunday in SC one is able to go to a “private” club by signing in with the bouncer and showing an ID. Pay as you go, just like a normal bar except you had to sign in first.

Do we know who concurred with the potential decision? Bartlett, Kavenaugh ,
and Thomas are for sure. But Roberts? Gorsuch?

The text of the opinion that leaked does not explicitly say, it just starts off that it is the opinion of the court (the common form for a majority ruling), and does not list concurrences or etc. Politico which broke the original leak, said in that article that a source “close to the courts deliberations” indicated that Gorsuch, Thomas, Kavanaugh and Barrett had ruled with Alito in conference (when the Justices meet and “vote” on a case.) Roberts reportedly wanted to uphold Mississippi’s 15 week abortion ban, but without explicitly overruling Roe.

Roberts has confirmed the text of the opinion–but also said that it is the text of a draft opinion, no one official has confirmed which justices voted for what. But the likelihood is Politico got it right, they have a source that got them the text of a Supreme Court opinion which is no small thing, so it is plausible either that same source or another source accurately described the voting.

It appears to be Gorsuch, not Roberts.

Roberts would prefer to boil the frog a little more slowly, lest it hop out of the pot.

I saw an op-ed on Raw Story several days ago, suggesting how Roberts could “save” Roe v Wade if he cares to – that is, he could see RvW weakened but not totally overturned.

The strategy would be: Roberts joins the majority in favor of overturning RvW. That would give himself the prerogative of assigning which justice will write the final opinion (which he could assign to himself). Then write that opinion, weakening RvW but not totally overturning it.

There is a little bit of precedent for a Chief Justice doing that to manipulate the shape of an opinion (Warren Burger is accused of having done it a couple of times), but you can only really bend it so far–the Chief Justice does get to assign the opinion, and he could assign it to himself and tone down Alito’s version, but if it gets too far astray, the other 5 Republicans on the bench could refuse to sign it as a concurring, and thus he wouldn’t be in the majority. You’re also walking a fine line as Chief Justice to try and keep the court functional, and some of these procedural games would undermine it even more. Us outside the court don’t care about that, but Roberts does.

ETA: Here’s the story. This link isn’t Raw Story, but it does appear to be the same story. Yes, this article discusses the background and prior cases where the Chief did something similar. The alternative line of thinking is that such a move, in this case, could save the reputation of the Court, given that the leaked Alito opinion is widely seen as such an abomination.

There is a limit to how effective such a manoeuvre would be. No justice would be obligated to sign this opinion. The other conservative justices could decide to sign a different opinion after seeing what Roberts comes up with.

But Roberts assigns who writes the opinion. Where does another opinion come from?

After the chief justice assigns who will write the majority opinion, but this is only provisionally the majority opinion. No one is obligated to actually sign it. All the justices can then read the opinion. And then any number of them can decide to write their own opinions, and they can sign on to whichever ones they want. And it very well may be that what Roberts thought was going to be the majority opinion is no longer the majority opinion. No one is locked into signing on to an opinion after an initial vote. The chief justice can’t trick other justices into signing an opinion they ultimately don’t want to sign.

If you’re asking what I think you’re asking…
Roberts didn’t assign Alito to write the opinion that got leaked. Clarence Thomas, as the senior-most justice among that majority, got to choose who would write the majority opinion, and he chose Alito to write it.

I think this, in itself, implies that Roberts was never in that majority, or else Roberts, as Chief Justice, would have chosen someone (and probably not Alito) to write it.

The thought here is that if Roberts now joins that majority (at first glance an awful thing, at it makes the 5-justice majority now a 6-justice majority) he would then have the privilege of assigning someone else to write (re-write?) the opinion, possibly softening it.

The Justices take a head count vote in conference, and then go from there. Nothing is official at that point, but they have to start getting an opinion drafted to move forward. As Senegoid mentions, if the Chief Justice is in the majority, he always gets to assign the justice that will write the opinion. If he is not, it is always the most senior Justice in the majority. At this point though nothing is official, Roberts could still switch his vote, and as he would now be in the majority, he could also say that he is assigning the opinion to a different justice.

The Chief Justice’s power over the other justices is only small and in a few specific instances like this, so it isn’t that much of a power play–the five justices that currently make up the majority for example could all say that they are in lockstep agreement with Alito’s drafted opinion, and that they will not concur with any other form of the opinion. In that case Roberts’ assignment power doesn’t mean much, it would mean Roberts himself could write a concurring opinion that agreed with the ruling but not with the opinion behind it, which would not have any real meaning in terms of precedent.

It is certainly possible if Roberts chose to intervene in this way, that it could break up the five-justice block into a more fractured majority opinion, but it’s not at all obvious if that’s true or not, that’s just speculation. So yes, the journalists saying Roberts could do this are correct, but he can’t force the five to agree with an opinion they don’t agree with, so they still get ultimate say.

Note that these rules of how the Supreme Court operates are only as binding as the justices want them to be. A justice is always able to write their own opinion, either concurring or dissenting. Signing onto others’ opinions is for reducing workload and amplifying the weight of an opinion.

Alito's rationale depends on a theory of substantive due process which to my knowledge Thomas has consistently rejected1. Would Thomas join that opinion or write a concurring opinion? If the latter we're looking at a ruling with four Justices (Alito, Gorsuch, Kavanaugh, Barrett) plus two concurrences in judgement (Roberts, Thomas). Which means only the judgement counts as precedent, or more likely, the draft gets re-written so that the court only backs certain parts of it.

1 ETA: For example, here.

~Max

Contrast the below, Thomas’s dissent in June Medical Services L.L.C. v Russo,

Roe suggests that the Due Process Clause’s reference to “liberty” could provide a textual basis for its novel privacy right. Ibid. But that Clause does not guarantee liberty qua liberty. Rather, it expressly contemplates the deprivation of liberty and requires only that such deprivations occur through “due process of law.” Amdt. 14, §1. As I have previously explained, there is “‘considerable historical evidence support[ing] the position that “due process of law” was [originally understood as] a separation-of-powers concept . . . forbidding only deprivations not authorized by legislation or common law.’” Johnson v. United States, 576 U. S. 591, 623 (2015) (opinion concurring in judgment) (quoting D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789–1888, p. 272 (1985)). Others claim that the original understanding of this Clause requires that “statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review.” Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1679 (2012). But, whatever the precise requirements of the Due Process Clause, “the notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald, 561 U. S., at 811 (opinion of THOMAS, J.).

With Alito’s draft,

[O]ur decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight amendments. Those amendments originally applied only to the federal government, Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247-251 (1833) (opinion of Marshall, C.J.), but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. See McDonald, 561 U.S, at 763-767 & nn. 12-13. The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation's “scheme of ordered Liberty.” Timbs v. Indiana, 586 U.S. ___ (2019) (slip op. at 3) (internal quotation marks omitted); McDonald, 561 U.S., at 764; Glucksberg, 521 U.S., at 721 (1997).19 And in conducting this inquiry, we have engaged in a careful analysis of the history of the right at issue.

~Max