Summary: A leaked first draft of a majority opinion in Dobbs v. Jackson Women’s Health Organization indicates the Supreme Court plans to eliminate the constitutional right to abortion established by Roe v. Wade in 1973 and affirmed by Planned Parenthood v. Casey in 1992. Duke University constitutional law scholar and Supreme Court analyst Neil Siegel is available to comment.
“The apparent leak of the apparent draft majority opinion in Dobbs is extraordinary and egregious. No one should be eager to add our nation’s highest court to the list of dysfunctional government institutions,” says Neil Siegel, a professor of law and a professor of political science at Duke University.
“The apparent draft opinion is not final. When I clerked at the court, the draft main dissent in a case eventually became the final majority opinion. I am not suggesting that anything like that will happen now, but it’s not over until the opinions are handed down.”
“At other times, a tentative bare majority opinion can lose a fifth vote and become a plurality opinion. This would mean not a different outcome in Dobbs, but different reasoning that could have less severe implications for future cases.”
“If the leaked draft opinion does become the authoritative opinion of the court, however, then the outcome is not terribly surprising — it is, after all, what the 2016 election was about, whether people realized it at the time or not. But such an outcome is pretty much the worst-case scenario for defenders of reproductive rights.”
“The extreme content and mocking tone of the apparent draft majority opinion in Dobbs is extraordinary and egregious. Since 1973, there has been a constitutional right to abortion in the United States, and it has been repeatedly reaffirmed in the face of repeated attempts to overrule it by a wide variety of justices of different ideologies and party affiliations with an increasing appreciation of the centrality of the right to the equality, liberty and dignity of women and transgender men.”
“What the leak and the draft have in common is a disregard for the legal and public legitimacy of the court — and a failure to register that the justices and their clerks are temporary occupants of an institution that is greater than themselves.”
Neil Siegel is a professor of law and a professor of political science at Duke University. He also directs Duke Law’s Summer Institute on Law and Policy.
A former clerk of Associate Justice Ruth Bader Ginsburg, Siegel served as special counsel to U.S. Sen. Christopher Coons during the Supreme Court confirmation hearings of Ketanji Brown Jackson, Amy Coney Barrett and Brett Kavanaugh, and advised Sen. Coons during the confirmation hearing of Neil M. Gorsuch. Siegel also served as special counsel to U.S. Sen. Joseph Biden during the U.S. Supreme Court confirmation hearings of John Roberts and Samuel Alito.
In July 2021 Siegel testified before the Presidential Commission on the Supreme Court of the United States on the constitutionality and justifications of various court reform proposals and their effect on the perceived legitimacy of the Court.
For additional comment, contact Neil Siegel at:
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