Incoming Supreme Court Justice Ketanji Brown Jackson says that everyone familiar with the high court and how it operates would have been “shocked” by the unprecedented leak of the draft opinion overruling Roe v Wade.
The newest justice, who will take her place on the bench this summer, said the leak was “such a departure from normal order” in an interview with The Washington Post published Monday.
She would not say if she thought the leak was good or bad, and she refused to comment on the protests outside of the homes of some of the conservative justices.
Judge Jackson was confirmed last month and will be replacing Justice Stephen G. Breyer, who is set to retire after the court’s term wraps up at the end of June. She had previously clerked for him before serving as a district and appellate court judge.
Court watchers were aghast when news broke earlier this month that the high court is poised to overturn Roe v. Wade, the 1973 case that gave women a right to an abortion.
Pro-choice protesters have shown up outside the houses of Chief Justice John G. Roberts Jr., Justice Brett M. Kavanaugh, Justice Amy Coney Barret and Justice Samuel A. Alito Jr.
White House press secretary Jen Psaki has refused to condemn the leak and has expressed support for First Amendment rights.
“Our view here is that peaceful protests — there’s a long history in the United States in the country of that. And we’ve certainly encouraged people to keep it peaceful and not resort to any level of violence,” she said last week.
It is the first time a full draft opinion has been leaked in the Supreme Court’s 233-year history.
In the 98-page draft opinion first obtained by Politico, Justice Alito said the abortion issue should return to the state legislatures.
“The Constitution makes no reference to abortion,” he wrote. “Roe was egregiously wrong from the start.”
“It’s time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” reads the opinion, which was dated in February.
An official ruling in the case is expected by the end of June.
Chief Justice Roberts said the draft opinion was authentic but noted it did not represent a final ruling. He has called for an investigation to uncover who leaked the document to the press.
The court is weighing a Mississippi ban on abortion at 15 weeks in the case of Dobbs v. Jackson Women’s Health Organization.
Mississippi officials argue that Roe should be overturned because it’s outdated. The state contends the viability standard set out in Roe is unclear, and Mississippi has an interest in banning abortions after 15 weeks to protect women’s health and that of unborn children.
The legal battle was brought by Jackson Women’s Health Organization, the state’s only abortion clinic, and a doctor who provides abortions. According to court papers, the clinic provides abortions up to 16 weeks of gestation.
They challenged the state’s Gestational Age Act, enacted in 2018. The law bans abortions after 15 weeks unless there is a medical emergency or severe abnormality within the fetus.
The abortion providers told the court in their filing that the state’s interest in the woman’s health and children doesn’t begin until viability, which occurs “months” after the 15-week marker set in the law.