The meeting Thursday in the justices' private, wood-paneled conference room could be a tense affair in a setting noted for its decorum. No one aside from the justices attends and the most junior among them, Justice Amy Coney Barrett, is responsible for taking notes.
Thursday’s conference comes at a tense moment as pro-abortion protesters have been gathering outside the houses of the conservative justices...a clear violation of federal law.
Chief Justice John Roberts last week confirmed the authenticity of the opinion, revealed by Politico, in ordering the court's marshal to undertake an investigation.
Roberts stressed that the draft, written by Justice Samuel Alito and circulated in February, may not be the court's final word. Supreme Court decisions are not final until they are formally issued and the outcomes in some cases changed between the justices’ initial votes shortly after arguments and the official announcement of the decisions.
That's true of a major abortion ruling from 1992 that now is threatened, Planned Parenthood v. Casey, when Justice Anthony Kennedy initially indicated he would be part of a majority to reverse Roe but later was among five justices who affirmed the basic right of a woman to choose abortion that the court first laid out in roe in 1973.
Kennedy met privately with Justices Sandra Day O'Connor and David Souter to craft a joint opinion, with no hint to the public or even to other justices about what was going on.
“I think it’s tradition and decorum that everyone corresponds in writing about things that are in circulation,” said Megan Wold, a former law clerk to Alito. “But at the same time, there’s nothing to prevent a justice from picking up the phone to call, from visiting someone else in chambers.”
A major shift in the current abortion case seems less likely, at least partly because of the leak, abortion law experts and people on both sides of the issue said.
“I think the broad contours are very unlikely to change. To the extent the leak matters, it will make broad changes unlikely,” said Mary Ziegler, a scholar of the history of abortion at the Florida State University law school.
It's not clear who leaked the opinion, or for what purpose. But Alito's writing means that there were at least five votes in December to overrule Roe and Casey, just after the court heard arguments over a Mississippi law that would ban abortion after 15 weeks of pregnancy.
Based on their questions at arguments, Justice Clarence Thomas and former President Donald Trump's three appointees, Justices Neil Gorsuch, Brett Kavanaugh and Barrett, seemed most likely to join Alito.