The leaked draft of a majority Supreme Court decision by Justice Samuel Alito overturning Roe v. Wade means several things.
First, it indicates that in the justices’ private conference, at least five members of the court voted to reverse the 1973 abortion precedent. They aren’t bound by that vote, which they can change up to the day the final opinion is released. Almost all first drafts undergo significant revision based on discussion and debate among the justices. So the second point to make is that Roe isn’t yet overturned, though it very likely will be.
Could anything change that result? Only if two or more justices decide to flip the court the other way. That would probably mean Justice Brett Kavanaugh and Chief Justice John Roberts would have to end up joining forces with the court’s three liberals. The draft opinion is sufficiently strident in the way it rejects Roe that it remains possible that it will lose their votes. Kavanaugh could file a concurrence that would become the controlling opinion. And it is not utterly out of the question that he could discover an unwillingness to vote to overturn Roe – although that seems especially unlikely at this juncture.
So the first thing to understand about the draft that was leaked to Politico is that it’s a draft – not the final opinion. It can and will change.
The second is that a leak like this is a terrible blow to the court’s morale and process and legitimacy. It hardly matters whether it was leaked by liberals trying to shock the nation’s conscience, by conservatives trying to bolster the confidence of potentially wavering justices, or by some disgruntled employee looking for a thrill or money or something else. Whatever the leaker’s motive, the result is very bad.