SACRAMENTO, Calif. (KTXL) — A draft of a Supreme Court opinion is sending shockwaves through the country for more reasons than one.
“It’s highly unusual to have a draft leak before the opinion comes out,” said Leslie Gielow Jacobs, professor at McGeorge School of Law.
Jacobs would know better than most. Before her nearly 30 years teaching at the University of the Pacific’s McGeorge School of Law, she clerked at the highest court of the land for Justice Lewis Powell, where she says confidentiality was always a given.
“I don’t remember signing anything but I always knew that nothing went outside the chambers,” Jacobs said.
The irregularity of Monday’s leak was overshadowed only by the draft itself.
“It’s overruling an interpretation of what the Constitution means,” Jacobs said. “We the court said — in the past and have said — for 50 years that the word liberty includes the right to choose abortion before viability, but we are now saying that the world liberty doesn’t mean that.”
Jacobs said it’s not unheard of the court to reverse course.
For example, within a 60-year span, the Supreme Court upheld segregation and then declared it unconstitutional.
However, this differs said Jacobs because after the 1973 Roe v Wade decision establishing a constitutional right to an abortion, the court again upheld the right in 1992.
“This is an unusual one because the court already thought about overruling and said we’re not gonna do it,” Jacobs said. “And so then we have a change in composition and now they say ‘Now we we’ve changed our mind.’”
This also could be seen as a shift because with regard to individual rights the court had generally been moving toward expansion.
“Giving it to more people as opposed to taking it away, so this takes away that constitutional protection. And in that way it’s unusual,” Jacobs explained.
While the draft opinion is not final, it does suggest that at this point majority of justices have voted to overturn Roe V. Wade. Jacobs said it’s uncommon for votes to change but not unheard of.
“In major cases, they have changed according to reports both with respect to the Affordable Care Act and with respect to the Casey decision,” Jacobs said.
However, in Jacobs’s opinion, the leak will harden the resolve of the justices.
“Simply because it will look like they changed their mind. They should be able to change their mind, but it’s easier to do it if it’s not out in the public,” Jacobs said.
So when it comes to who leaked it and why, Jacobs said she does not see a reason.
“I don’t see a strategic reason for somebody who opposes that decision to release the draft,” Jacobs said.
Assuming the votes do not change, what happens to the country now?
“It will be divided into states that permit abortion and states that don’t permit abortion.”
And what could happen down the road?
“What opens up is the possibility to prohibit it entirely,” Jacobs explained.