Monday night at 8:30 pm Politico published nearly one hundred pages in which Justice Samuel Alito gave what was seemingly the majority opinion against Roe and Casey. If this is true this seeks to upend decades of precedent and leaves the decision up to the states.
This kind of a leak from SCOTUS is unprecedented, the AP described it as “the Pentagon Papers but for the Supreme Court.” This kind of early leak is unheard-of and hasn’t happened since the original case of Roe vs Wade in 1973.
If this leak is true, as it seems that it most likely is, this would be the most drastic change in precedent ever seen by the court. This would empower many state legislatures to enact bills and laws which could seriously restrict access to abortion for hundreds of millions of Americans. Many states such as Michigan already have almost total abortion bans that are triggered by the ending of Roe vs Wade. This isn’t mentioning the many other states such as Oklahoma which are taking monumental steps in the direction of passing near-total bans on abortion. When these laws are triggered and passed we may see “copycat bills” passed by conservative state legislatures throughout the country. These are bills that are similar in ends of means to other already enacted bills.
These major shifts in court ideology are due to a major rightward shift in the court during the Trump administration. Trump, with the help of national conservatives in congress and around the country, embarked on a campaign of blocking liberal nominations and ensuring conservative ones. Nowhere was this more apparent than in the Merrit Garland and Neil Gorsuch debacle in 2016. Senate Majority Leader Mitch McConnel blocked Merrit Garland’s appointment to the bench in order to ensure that trump could fill the seat after Obama’s exit. His reasoning was to give the American people a chance to choose who would have the duty to fill the seat because it was so close to an election. Then in 2020, the same Senate Majority Leader confirms Amy Coney Barret to the bench just days before the 2020 election.
These tactics consistently used by conservatives nationwide have led to a supportless shift to the right in the nation’s judiciary.
Nowhere is this more apparent than in the simple fact that according to CNN nearly 70% of Americans support Roe vs Wade and don’t believe in its overturning. This could be detrimental for conservatives in 2022 and beyond. In 1973, when Roe vs Wade was originally decided there was a major backlash from American conservatives that energized the social conservative movement. We may be looking at a similar story just with social liberals in the US. This could serve as a rallying call for liberals and centrists as a clear indicator of conservatives’ push against different freedoms and liberties. This decision could indicate a major turnaround in the midterms that may serve to hand democrats majorities in congress, and in legislatures around the country. If this issue (as it likely will) becomes a core issue this November there is no doubt that democrats’ chances will be helped. Beyond that, this may serve as a wake-up call to liberals and could help democrats win elections against social conservatives in the future.