A Draft Leaked Opinion Puts the Supreme Court’s Impartiality into Question

Elections and Politics Policy Brief #36 | By: Maureen Darby-Serson | May 22, 2022

Header photo taken from: AP Photo / Anna Johnson




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Lawyers and scholars backing abortion rights have criticized Justice Alito’s reading of history as glossing over disputed facts and ignoring relevant details as the conservative justice sought to demonstrate that a woman’s constitutional right to terminate a pregnancy was wrongly recognized in the Roe ruling.

Photo taken from: Reuters

Policy Summary

Late on Monday May 2nd, 2022, a draft of an opinion written in February 2022, in the upcoming US Supreme Court case Dobbs v. Jackson Women’s Health Organization was leaked to the press. This is one of a handful of leaks, in general, since the US Supreme Court established itself in 1789. The Dobbs case is having the Court revisit the right to an abortion.

This court opinion, which was written by Justice Alito, would essentially overturn Roe v. Wade and Planned Parenthood of Southeastern Pa v. Casey, which gave Women the right to access to abortions on the federal level. This leaked majority opinion pushes off the decision to make abortion legal or illegal to the states.

Policy Analysis

Why is this such a big deal and what does it mean for the court moving forward?

When the Supreme Court was first established, the court justices used to board together to avoid leaks and encourage bonding. This set up the court to be impartial and work together to come to opinions on cases that were generally agreed upon by all justices. This leak signals a new era of the court where this collegial atmosphere may no longer be the case.

The point of the Supreme Court is to be impartial, not political, and for the justices to follow the letter of law instead of following their own beliefs. While Justice Alito tries to argue that abortion is a moral issue and should not be determined by the government or politics, pushing the legality of such off to the states allows for the possibility of states banning abortion on religious grounds. The separation of church and state will then further be put into question.

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The Supreme Court previously bulldozed the First Amendment’s separation of church and state in Espinoza v. Montana case in 2020.

Photo taken from: Slate 

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Usually, the Supreme Court does not revisit court decisions that it has previously decided, let alone, a decision it has revisited twice, like this one. This is to ensure that a decision is not revisited every time a court political opinion majority changes. 

This is a question that people currently ask. Is the court revisiting decisions on abortion because the balance of the Supreme Court is currently leaning towards the right?

It is unclear if this leaked draft opinion is the final opinion of the court, and we won’t know if Roe v. Wade will be overturned until that final opinion is ordered in late June. It is a waiting game until then, but this leak does show that things are changing at the US Supreme Court.

Engagement Resources​

Click or tap on resource URL to visit links where available 

Seal of the United States Supreme Court.svg

US Supreme Court website https://www.supremecourt.gov/

US Supreme Court leaked opinion https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf

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