Washington Wednesday - Out of order

MARY REICHARD, HOST: It’s Wednesday the 4th of May, 2022.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. First up: A leak at the Supreme Court.

As we reported just moments ago, Chief Justice John Roberts confirmed it yesterday: that a draft copy published by Politico Monday night of a ruling to overturn Roe v. Wade is authentic.

REICHARD: So what are the effects here? Not only of the draft opinion itself—assuming it becomes the final, official decision—but also the unprecedented betrayal of high court protocol?

EICHER: Joining us now to help answer that is Barry McDonald. He is a professor of law at Pepperdine University. He’s a former law clerk for Chief Justice William Rehnquist. And Prof. McDonald is a recognized scholar in constitutional and First Amendment law.

REICHARD: Professor, good morning.

BARRY MCDONALD, GUEST: Good morning. Thank you for having me.

REICHARD: Well, let’s start with the leak of this draft. How does something like this happen?

MCDONALD: That’s a good question because it really hasn’t happened that I know of before, where a draft of an opinion was leaked, at least in modern times. But it's an egregious violation of the duties of confidentiality that surround both law clerks and regular employees at the Supreme Court.

REICHARD: What is the expected procedure for releasing a final opinion? What changed? What’s different about this?

MCDONALD: Well, I mean, nothing changed. It's just what happens is that the Justice who's assigned to write the majority opinion then circulates a draft of the opinion like it seems like Justice Alito was the one assigned to write this opinion. And I've got to believe it was Justice Clarence Thomas who made the assignment of that opinion, because my guess is Chief Justice Roberts was not in the majority in favor of overruling Roe vs. Wade. So since Alito had the assignment to write the opinion. And he was in the, you know, he was in the majority, obviously, after the conference vote. So how it happens is that you have oral arguments in a case and then the court convenes the Friday after the oral argument, and they have a straw poll, and they say, Okay, well, where are you leaning on this case? And if you're in the majority, then the senior justice in the majority assigns one of the other justices or takes the opinion himself to write, or herself. If, for example, the chief justice is not in the majority, then the next senior justice either takes the opinion to write or assigns the opinion to another justice. So here, Justice Alito had the assignment to write the first draft of the majority opinions. And what happens is that once you have that draft in hand, then you circulate it to the other chambers and the other justices read it and either they send a memo saying, “Okay, well, we're joining that opinion,” or they confer informally with the other justice—usually through law clerks—and say, you know, “look, if you can change this, or you can change that, I'll join the opinion,” or they'll join it, and they'll write separately expressing some reservations or adding some additional insights. And, of course, a lot of times they'll just dissent. But that first draft opinion is very important, because it sort of focuses all the other justices on whether they're going to join this, whether you're going to write a concurrence, whether they're going to write a dissent, but it's all part of the deliberative process.

REICHARD: And what impact does this leak have on the h igh court’s process?

MCDONALD: Well, I think what it's going to do is they're really going to tighten up their processes. they're surely going to beef up whatever procedures they have for ensuring the confidentiality of law clerks. I'm just sure they're just going to really tighten up around that institution.

REICHARD: Well, let’s talk now about the draft itself and what it could mean. I’m sure you’ve read it. Explain the reasoning outlined in this draft for potentially overturning Roe v. Wade.

MCDONALD: Well, I haven’t put it under a magnifying glass but I have, you know, it's 70 pages of dense opinion. I have sort of skimmed through it and read through it. It is what I expected. It's the new five justice conservative majority essentially saying that, from a textual perspective, there is no right of abortion in the text of the Constitution.

There was no historic deeply-rooted history and tradition of protecting a right to abortion. He says quite the contrary. And then he sort of criticizes the more modern policy rationales that the Roe majority relied on, like, for example, saying that there is a right of abortion up to fetal viability, which at that point was at the end of the second trimester. He essentially said that was a modern policy determination that had no basis in the Constitution. And then he turns to stare decisis and says is there you know, “we think that Roe was very poorly reasoned. Is there a good reason not to overrule it?” And there he says, “No, we don't think that there is,” and then ends up concluding that Roe versus Wade is overruled. And that's exactly how I would have expected this opinion to have read.

REICHARD: If this draft opinion becomes the final opinion, it would return authority over abortion law to the states. What do you see happening next?

MCDONALD: Well, I don’t see much different happening in the blue states like California and New York. The more conservative states are passing very restrictive abortion legislation. So what you're going to have is, you know, probably what the framers of the original Constitution envisioned, which is sort of important social policy decisions or questions like this being decided on a state by state basis by the people of the states and their representatives. And so abortion, presumably, at least in the more purple states and perhaps in some of the red states is going to become a very controversial topic, probably, where it's going to be fought out as a matter of state politics.

REICHARD: So I’m hearing language there about abortion restrictions. There are those on the pro-life side who say it’s just as much protection for mother and unborn child. So it’s as though certain language has entered the legal parlance to adopt language from the left that talks about restriction rather than protection. Do you see that? Do you see any correlation between language changes and the law?

MCDONALD: Well, it has, you know, since Roe versus Wade, the Supreme Court did frame it. They essentially ruled that the mother had liberty rights to obtain an abortion, and that a fetus was not a protected person under the Constitution. And so Roe set the stage for speaking of the abortion discussion as restrictions on a woman's right to get an abortion. Had the Roe court decided that a fetus was a protected person under the Constitution—like, for example, the German High Court has as a matter of the German constitution—had that been the outcome of Roe vs. Wade, I think the dialogue would have been different. I think that we just wouldn't be talking about restrictions on a woman's right to an abortion. I think the phraseology would be different. But Roe set the stage for that.

REICHARD: What do we know regarding which justices agreed with draft opinion author Alito?

MCDONALD: Well, we don't know anything from the draft, but the Politico magazine article that discussed the draft and disclosed it said that whatever confidential informant supplied the draft also indicated that there were five votes behind it. And that, you know, Justice Barrett, Justice Alito, Kavanaugh, Gorsuch and Thomas—what I call the new conservative five majority of the Supreme Court.

REICHARD: Barry McDonald has been our guest. Professor, thanks so much!

MCDONALD: My pleasure. Thank you for having me.

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