On Monday evening, Politico’s Josh Gerstein and Alexander Ward published a major scoop: “Supreme Court has voted to overturn abortion rights, draft opinion shows.”
Gerstein and Ward wrote, “The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.”
According to the document, labeled “Opinion of the Court,” obtained by Politico, Alito wrote, “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Gerstein and Ward go on to write, “Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.”
The Politico writers added, “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.”
Because such a draft becoming public is so rare — the Politico story called it an “extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades” — media observers were quick to at least question its authenticity and whether Politico should have run with it.
Politico editor-in-chief Matt Kaminski and executive editor Dafna Linzer sent a note to staff Monday night that said, “Team, just now on our site, we’ve published a story, along with an accompanying sidebar and document, on a draft Supreme Court opinion that would overturn Roe v Wade. After an extensive review process, we are confident in the authenticity of the draft. This unprecedented view into the justices’ deliberations is plainly news of great public interest. We take our responsibilities to our readers and our publication with the greatest seriousness. Our obligation, as protected by the First Amendment, is to report the news and inform our audience. Our journalism speaks for itself, and that’s not different here.”
Gerstein joined Rachel Maddow’s MSNBC show moments after he broke the story and said, “We’re very confident in the authenticity of this draft majority opinion … both in the way in we obtained it and other information that we got that supports its authenticity and makes us believe that it is genuine.”
How big of a deal is this?
In a sidebar story for Politico, Gerstein wrote, “The disclosure of a draft opinion in a Supreme Court case is a highly unusual occurrence. Supreme Court historians, former law clerks and other court watchers say they cannot recall a previous instance before Monday’s publication of a draft opinion in the Mississippi abortion rights case. However, in a handful of cases, hints about deliberations have slipped out publicly, including in Roe v. Wade, the landmark abortion-rights precedent that the justices now appear to be on the verge of abandoning.”
CNN chief legal analyst Jeffrey Toobin, on air, told CNN’s Anderson Cooper, “There has never been a leak (of) anything like this. There has never been a leak of a vote, much less an actual opinion, much less in a case of this significance. It’s really going to be an interesting question … what this means for the institution of the Supreme Court, what it means for the respect that the justices and the court’s decisions are held. The idea that a decision of this magnitude could leak is really a shattering experience for the justices and the court. And I really don’t know how the institution is going to recover.”
Clarification: This story has been updated to clarify the quote from CNN’s Jeffrey Toobin.
Tom Jones is Poynter’s senior media writer. For the latest media news and analysis, delivered free to your inbox each and every weekday morning, sign up for his Poynter Report newsletter.