by Gabe Fleisher
Good morning! It’s Tuesday, May 3, 2022. Election Day 2022 is 189 days away. Election Day 2024 is 917 days away.
As you’ve probably seen, there’s some major news out of the Supreme Court today.
Leading this morning’s newsletter is a full overview of the breaking news; later down, you’ll see my report from spending hours last night outside the court building, covering the protests that ensued.
Supreme Court poised to overturn Roe v. Wade, leaked opinion shows
In a seismic leak that shook the nation, Politico reported on Monday night that a majority of Supreme Court justice have voted to overturn Roe v. Wade, the landmark precedent that has protected abortion rights in the United States for the last half-century.
Politico also published the 98-page draft majority opinion, penned by Justice Samuel Alito, the first time in modern history that a draft Supreme Court ruling has been made public.
What does this mean? The Supreme Court heard oral arguments in December in Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law prohibiting most abortions in the state after 15 weeks of pregnancy.
A final ruling in the case is not expected from the justices until June; Politico’s report is an incredibly rare — although not unheard of — instance of a Supreme Court decision leaking out before being made official.
The justices can change their votes up to the last minute (as has happened in high-profile cases in the past) and the text of the opinion can still change, but the draft opinion offers an extraordinary look behind the scenes of Supreme Court deliberations as the justices wrestle with a historic case with far-reaching implications.
According to Politico, four other justices (Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) voted to join Alito after oral arguments in striking down Roe, which is why the draft is written as a majority ruling stating the “Opinion of the Court.”
The three liberal justices (Stephen Breyer, Sonia Sotomayor and Elena Kagan) are reportedly dissenting, while Chief Justice John Roberts’ vote is apparently up in the air.
After the Politico report was published, CNN reported another revealing leak: Roberts is willing to uphold the Mississippi law, but has expressed opposition to Alito’s more sweeping ruling overturning Roe completely.
“We hold that Roe and Casey must be overruled,” Alito writes in the draft opinion, which can be read here in full. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” (Planned Parenthood v. Casey is a 1992 decision that largely upheld Roe.)
Alito also writes that “Roe was egregiously wrong from the start” and that its reasoning was “exceptionally weak.” The justice goes on to list about two pages’ worth of past Supreme Court precedents that have previously been overturned, putting Roe in the same category as such infamous cases as Plessy v. Ferguson, which sanctioned segregation.
In the draft opinion, Alito also lays out his view that rights not explicitly included in the Constitution can only be protected by the Supreme Court if they have a deep basis in American history. “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” he writes.
If Roe is overturned, as this draft suggests it will be, the consequences will be immediately felt. As Alito calls for in his opinion, each state will be able to decide for itself whether or not to legalize abortion within its borders.
Already, 13 states have “trigger laws” on the books that will automatically ban abortions if Roe is struck down. Five additional states have pre-Roe abortions ban that could go back into effect, while four more states have approved extreme limits on abortion that could go into effect without Roe.
On the ground: Protesters gather outside Supreme Court after opinion leak
When I arrived at the Supreme Court building Monday night, less than an hour after Politico’s initial news alert buzzed on phones across Washington, only about 50 people had gathered outside.
The crowd was dead silent: almost all were sitting on the ground, many with lit candles. Over the next few hours, I watched as the gathering grew from about 50 people to about 500, while the quiet, vigil-like atmosphere eventually transformed to a full-on protest.
Out of the silence, it was one lone woman who started the chanting. “I say pro, you say choice,” Davis Leonard, a digital organizer for Democratic campaigns, yelled out. “Pro!” Slowly, the crowd began to follow along with “choice!”; for the rest of the night, there was barely another silent moment.
As the protesters grew in numbers, a variety of chants rung out condemning the Supreme Court’s apparent ruling, from “Abortion is health care” to “Fuck Alito” to “We will not go back.”
“I feel so much rage and feelings of powerlessness,” Leonard told me, “and I want to do something and all I feel like I can do right now is scream.”
Although court watchers have long anticipated the possibility of Roe being overturned, many of the protesters I interviewed expressed a sense of shock. Monica Leibovitz, a program manager in D.C., said she was “stunned” when she heard the news. “It doesn’t feel real,” she added.
Leibovitz acknowledged that it had long been anticipated that the court’s conservative majority could overturn abortion rights, but she said: “I guess it just seemed a little bit far away until tonight.”
“This woke me up,” Leibovitz added, expressing hope that other like-minded women would be similarly motivated by the ruling to protest and then to vote in this year’s midterm elections — one of the leading variables heading into November.
Some wiping away tears, other protesters worried aloud about what the abortion ruling could portend for future Supreme Court decisions. Rebecca Schendel Norris, a lawyer who works in the federal government, said she had scanned the draft opinion before rushing over to the Supreme Court in a shirt with the names of the female justices (minus Amy Coney Barret).
“It is scary the way the opinion is dismissive of equal protection, the way the opinion is dismissive of privacy rights in the Constitution,” Schendel Norris said. “All are dogwhistles for marriage equality and other issues that affect people’s sex lives.”
Abigail Chase, an American University student, felt similarly: “The question is, after abortion goes in some states, then what? Do we lose contraceptive access? What happens to IVF? What happens to women who are struggling to get pregnant or trying to have children?”
The demonstrations remained peaceful, although there were occasional verbal exchanges with a small clutch of anti-abortion counter-protesters. Early on in the night, someone from the latter contingent began to taunt the assembling crowd.
“You lost, babykillers!” he yelled. “Who wants to celebrate with me?”
The mood on the anti-abortion side was celebratory, while the bulk of the protests were somber — although, of course, the draft opinion that had been released was just that: A draft. It is unknown if it will reflect the Supreme Court’s final ruling.
Rev. Wendy Hamilton, who is running to serve as D.C.’s non-voting delegate in the House of Representatives, told me that it didn’t matter. “I don’t care if they come out tomorrow” and announce the opinion was just a draft after all, she said, promising that the issue would motivate Democrats in November either way. “It’s too late.”
“Your cards have been shown,” Hamilton added, turning to face the court building and its marble columns. “That’s all we need.”
What’s happening in Washington today
All times Eastern.
President Biden: Visiting a Lockheed Martin plant in Montgomery, Alabama (2:10 pm). Delivering remarks at the plant on U.S. security assistance for Ukraine (3 pm).
- Context: Lockheed Martin is America’s biggest defense contractor. The facility in Alabama manufactures weapons systems such as Javelin anti-tank missiles that the U.S. has been sending to Ukraine (which has been putting a strain on the U.S.’ own stockpile).
- In his speech, Biden will call for Congress to approve the $33 billion Ukraine aid package he requested last week.
Vice President Harris: Delivering remarks at an EMILY’s List gala gala (7 pm). EMILY’s List is a group that supports pro-choice Democratic candidates, so last night’s Supreme Court news is sure to come up.
- Context: After testing positive for Covid-19 last week, Harris tested negative on Monday and returns to work today.
Senate: Voting to confirm Joshua Frost as Assistant Secretary of the Treasury for Financial Markets (11:45 am) and Elizabeth de Leon Bhargava to be Assistant Secretary 0f Housing and Urban Development for Administration (2:30 pm).
House: Meeting for a brief pro forma session (10 am). No legislative business is conducted in such sessions, which few members attend.
Supreme Court: Not meeting today.
What else: Defense Secretary Lloyd Austin and Joint Chiefs of Staff Chairman Mark Milley (10 am) and Transportation Secretary Pete Buttigieg (10 am) will testify before Senate panels.
Links to watch for yourself: Harris speech • Senate session • House pro forma • Austin/Milley hearing • Buttigieg hearing
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