There remains a Supreme Court majority to strike down Roe v. Wade three months after the leaked draft majority opinion by Justice Samuel Alito was written, according to three conservatives close to the court, The Washington Post reported over the weekend.
This despite the fact that Alito’s draft majority opinion is dated Feb. 10 and is almost assuredly obsolete by now, as the other justices have had plenty of opportunity since then to suggest revisions, as well as offer critiques and dissents.
Chief Justice John Roberts apparently opposes the draft majority opinion and is reportedly pushing for a compromise decision he proposed in December that would get rid of the bright-line rule — that states cannot outlaw abortions before the approximately 22 to 24 weeks that a fetus would survive outside the womb — but would otherwise keep Roe intact, according to The Washington Post.
Roberts is reportedly trying to convince Justices Amy Coney Barrett and Brett Kavanaugh to join him in supporting the compromise.
Although Roberts is not a backer of abortion rights, he is a defender of the Supreme Court’s reputation, which he insists is downgraded when the public believes its decisions are a reflection of the justices’ political backgrounds.
It’s unclear how the unprecedented leak of the court’s private inner considerations and draft opinions might affect it and other cases.
Roberts called the leak “absolutely appalling” and opened a probe. But he stressed that the draft majority opinion “does not represent a decision by the court or the final position of any member on the issues in the case.”
Michael Luttig, a retired appellate judge and leader in the conservative legal community, told the Post that this unprecedented breach “comes at time when the Supreme Court’s very legitimacy is being questioned.”
Luttig said the court “can never recover” from the incident, which helps strengthen the increasing public perception that politics, and not objective adherence to law, pervades the court’s decisions.