Leaked document suggests the Supreme Court intends to strike down Roe v. Wade

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Leaked document suggests the Supreme¹ Court intends to strike down Roe² v. Wade³

Transcript⁴

Politico published Monday night what appeared to be an initial draft majority opinion written by Justice Samuel Alito circulated inside the court. Roe v. Wade legalized abortion⁵ in the U.S.

A MART?NEZ, HOST:

We begin with news of a legal and political earthquake at the Supreme Court. A leaked opinion suggests the court intends to strike down Roe v. Wade, the landmark⁶ abortion ruling. That's according to Politico, which last night published what appeared to be an initial draft of a majority written opinion by Justice Samuel Alito. NPR has not independently verified the opinion. Still, though, the news has created shock waves. NPR legal affairs correspondent Nina Totenberg joined us this morning to discuss the leaked document.

NINA TOTENBERG, BYLINE⁷: It looks totally legitimate⁸. It's very long. It's in this framework of a Supreme Court opinion. It has something like over a hundred footnotes that are appropriate footnotes. If this is a fake, it's a very masterful fake. But it really smells like, looks like and feels like the real thing.

MART?NEZ: Is there any thought at all that the purported⁹ opinion has a chance of changing?

TOTENBERG: You know, there's always that chance; it's happened numerous times. But the Politico story said - Politico said it had, I think, four sources to - in authenticating¹⁰ this document who said that there were five votes to sign on to this opinion or something very roughly like it. Now, it also said it was unclear whether the chief justice would sign on to the opinion, since, at least in oral argument, his view seemed very different than the other conservative members of the court. His view was to - seemed to suggest that he wanted to go slowly, uphold the Mississippi law that's at issue here which bans abortions¹¹ after 15 weeks and leaves the basic framework otherwise intact of Roe v. Wade for now and perhaps slowly chip away at it. But he got no takers at oral argument.

So the question in my mind is whether he even assigned this opinion. The chief justice assigns opinions when he's in the majority. And he might well have assigned this opinion, and he may well sign on to this opinion. Or he may well have said, I don't think this is the right way to go. And in which case the senior member in the majority assigns who will write the opinion, and that would be Justice Clarence Thomas. And I can't think of any reason why Thomas wouldn't give himself this opinion. So there are still some mysteries to this, but I would be shocked if this were not an early draft of the opinion that will eventually come out. I'm also completely shocked that this happened at all.

MART?NEZ: And so now that it seems like the cat's out of the bag, so to speak, I mean, what's the court likely to do now?

TOTENBERG: Well, they're going to have to do what they normally do, which is work out what the opinion is going to say, refine it, take things out that are offensive to some people in the majority or strengthen other things. But I would think this is a bomb at the court - really, a bomb. And it undermines everything the court stands for internally and institutionally - that they trust their law clerks, that they trust each other, that they work on things jointly¹². And there has never been a leak, a compromise like this at the court, at least in modern times. No fully¹³ formed draft opinion has been leaked to the press or outside the court. Once or twice, there have been leaks that say how a something's going to turn out or after the fact that somebody may have changed his or her mind. But this is a full-flown Pentagon Papers-type compromise of the court's work. And they won't be able to trust each other for a very long time. And they won't be able to trust their law clerks in the same way, either.

MART?NEZ: What's the court likely to do now? Will they launch an investigation¹⁴?

TOTENBERG: Well, they may. But as - you know, I can't imagine that the court would turn outside of itself - to the FBI, for example - to investigate who did this. And after all, a leak like this is not a crime. So how could you turn to a law investigative agency for that? The court, I think, will try to figure out who did this internally. It's a career-ender for whoever did.

MART?NEZ: That's NPR legal affairs correspondent Nina Totenberg. And once again, NPR has not independently verified this reporting. Nina, as always, thank you.

TOTENBERG: Thank you.