For all the sound and fury that followed the leak of a preliminary draft of the Supreme Court’s abortion opinion, just how the Court will come out on the issue is not all that clear even if one excluded the intimidation factor from the equation.
The processes of the Court are labyrinthian, and preliminary drafts are just that: preliminary, subject to change in the normal course after circulation to all the Justices. To be sure, the fact that Justice Alito was chosen by the chief justice to prepare the initial draft means that Alito was a member of the majority in the initial post-oral argument conference on the case. It is possible, however, that while a majority of Justices were in favor of upholding the Arizona’s ban on abortions after 15 weeks into a pregnancy, and they did not necessarily support Alito’s language scuttling Roe v. Wade itself. What Alito wrote should not be taken as an indication of the Court’s final word. Of course, things are not promising for abortion rights, but the point is that there are a lot of moving parts in the mix.
While uncertainty about the Court’s future decisions remains, it should be clear that President Biden has now gone where no president has ever gone before with his refusal to condemn efforts by protesters to pressure Supreme Court justices to change their anticipated votes.
Presidents and other elected officials have typically urged initial acceptance of court outcomes and encouraged political engagement as the appropriate reaction to results they don’t like. Think about it. In Mr. Biden, we have a president who aligns himself with those seeking to pressure judges – even those sitting on the highest court in the land – into judicial decision-making that is inconsistent with their views on the law. A more lethal broadside to our democracy is hard to imagine.