HOUSTON — A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter.
So, how does the Supreme Court process work? How does it go about its business or issuing opinions?
KHOU 11 anchor/reporter Ron Treviño spoke to an expert on the matter: University of Houston Law Center Associate Professor Emily Berman.
The Supreme Court process
Every year the United States Supreme Court's term begins in October and typically the Court recesses in late June or early July.
"They hear 60, 70, 80 cases a year. Many of them are unanimous decisions. Many of them non-controversial. Many of them about the minutia of law procedure," Berman said.
As the leak investigation gets underway, Berman believes the Supreme Court will continue business as usual.
Chief Justice John Roberts said: "Although the document described in yesterday's reports is authentic, it does not represent a decision by the Court or the position of any member on the issues in the case."
The process of creating opinions includes the justices and their law clerks. Each justice can have up to four clerks.
"Once those opinions are in draft form, they circulate them to the rest of the court and that begins the process of edits and modifications and sometimes negotiations about what should it say, what shouldn't it say," Berman said. "They don't go back and forth in person, they go back and forth on paper through the editing process or going back and forth in memos to one another."
In this case, something that's never happened before, happened. The draft was leaked to the public.
"We don't know who leaked this opinion. It could have been one of the justices themselves or it could have been a clerk, we don't know," Berman said.
The official opinion on Roe v. Wade is expected in late June or early July.
The leaked draft
The draft is signed by Justice Samuel Alito, a member of the court's 6-3 conservative majority, who was appointed by former President George W. Bush.
“Roe was egregiously wrong from the start,” the draft opinion states.
“We hold that Roe and Casey must be overruled,” it adds, referencing the 1992 case Planned Parenthood v. Casey that affirmed Roe’s finding of a Constitutional right to abortion services but allowed states to place some constraints on the practice. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Roberts on Tuesday confirmed the authenticity of the leaked draft opinion. He ordered an investigation into what he called an “egregious breach of trust.”