I read the opinion on Politico this morning. My reactions are as follows:
- My initial assumption was that the opinion was leaked by one of the clerks for a liberal justice, but, on further reflection, I have doubts about that. This could very well be a signal to red state legislatures that there is no risk in moving ahead with total abortion bans as quickly as possible. If so, the leaker probably works for a right-wing justice.
- With one notable exception, the opinion is consistent with the predictions I made several months ago. It contains lots of analysis about history and text; it is very pro-democracy and states’ rights; it emphatically does not touch Griswold; it nods to the “personhood” argument without making any commitments; and it addresses the Ginsburg equal protection line of reasoning at some length, primarily by making the same points that Barrett did during the oral argument.
- Assuming, for purposes of argument, that this draft serves as the basis for the final majority opinion, I was wrong about the identity of the author. I thought the majority would prefer Barrett as the author in an effort to protect the Court from charges of rank sexism. It would appear that Alito’s desire to make history was more powerful than the majority’s concerns about public opinion.
- I have predicted that Thomas will write a gloating, obnoxious concurring opinion. We don’t know the answer to that yet.
And so, the ambiguity is gone. To return to the slavery analogy, we are now turning to the “popular sovereignty” phase of the debate. The real question is whether the red states will succeed in imposing their will on the blue states through extraterritorial provisions in their new statutes. That issue will take center stage very quickly.
Oh, and I wouldn’t want to be Susan Collins today. She’s going to get a lot of difficult questions about her vote for Kavanaugh.