If the Alito draft was drawn up in February, why were they holding onto it so long?

[Frustratedlady]

Were they waiting until after the election when they thought they would take control of the House and Senate?

In the manner in which they do things, can a justice write something up as critical as this proposal and not let the others know that is what he has done or do they know his plans ahead of time and then have their arguments?

I just find it interesting that he held onto it from February and apparently had no plans to release it for a while. How fortunate that someone was brave enough to do so.

[FBaggins]

1. Not unusual

It was expected for June release.

Ruling (particularly impactful ones) can take several months

They would have had a preliminary understanding of where they were in conference after the oral arguments (possibly before). Then the senior justice in the majority would assign someone to write the opinion. Since that was Alito, we assume Roberts is not in the majority.

That’s the draft we’ve seen. Next would come internal comments and the remaining justices would write one or more dissents (and likely a concurrence by Roberts). Then the draft opinion would probably be edited to include responses to the dissent(s)’ primary arguments (and that would probably cycle a few times )

[Demsrule86]

4. I do not believe they would ever have released it in June...it would have been after the

election.

[PoliticAverse]

6. No it would have been released in June/July right around when the term ends. n/t

[Demsrule86]

10. It would not be the first tiime a ruling doesn't come out when it is expected.

[PoliticAverse]

11. Alito is a true believer. He'd be chomping at the bit to release this as soon as possible.

If the leaker thought the decision wasn't going to be released until after the election the time to leak would be right before the election for greatest impact.

[Igel]

12. It would be released before the end of the court's term.

That's how it works.

I teach. I'm not going to post my final grades for spring semester in October months after the new term began.

If they waited that long, Breyer would have resigned and no longer have a vote, and Brown wouldn't have a say since she wasn't there for arguments. That's not going to happen.

[Ms. Toad]

23. All decisions from each term are released before the term ends.

At the latest, the first week in July. (The new term starts in October.)

[Bucky]

2. Going into the metadata and deleting all the Heritage Foundation fingerprints

I mean, Alito clearly didn't spend the time looking up fresh precedent rulings from US case law.

[Ocelot II]

3. Depends on who the leaker turns out to be.

I can't figure out why a court employee who opposes the decision would wait until now, since the case was to be released in just a few weeks anyhow and the uproar wouldn't be any less. But someone who agreed with it might have discovered that some of the justices were beginning to waffle since the draft started to circulate and might not sign onto it.

[Demsrule86]

5. It would have been released later IMHO. It is the only thing that makes sense.

[BruceWane]

25. What makes sense is SC normal operating procedure

The Supreme Court decides what cases they're going to hear for the current term, hears oral arguments, then issues opinions in June, early July at the latest.

No sooner, no later.

Even highly controversial opinions.

It would be EXTREMELY controversial for them to hold back an opinion into mid November. Roberts is the chief justice; sure, he's conservative, but he's generally shown that he's not a nut job in the league of Alito, Thomas, Kavanaugh, Gorsuch, and Barret. I very seriously doubt he allow an opinion to be held due to an impending election, especially when the supposedly "non-partisan" nature of the SC is under heavy - and justified - criticism.

[jmowreader]

8. You're assuming Alito didn't release it himself

[Ocelot II]

9. True, or Ginni Thomas.

[Meadowoak]

7. Probably wanted to wait for Summer recess, 4 mo's for the

Public to cool down, while the justices all enjoy their European vacations.

[taxi]

13. A single Justice writes an opinion based on how the majority voted, calling it the majority opinion.

After that there are still procedures they follow.

Scotusblog.com explains how it works.

The senior justice in the majority (that is, either the chief justice or, if he is not in the majority, the justice who has been on the court the longest) decides who will write the majority opinion; if there is a dissent — a view held by a minority of justices that a different decision should have been reached — then the senior dissenting justice assigns one of the dissenting justices to write the dissenting opinion. If a justice agrees with the outcome of a case but not the reasoning behind it, he or she may write a concurring opinion, in which other justices may join. Justices may also write separate dissents. In the event of a tie vote — for example, if there is a vacancy on the court or if one of the justices has recused himself or herself from the case — the decision of the lower court remains undisturbed.

The assigned justices then draft and circulate opinions outlining their reasoning in reaching their decision. The time it takes to finalize an opinion depends on several factors, including how divided the Justices are, which justice is writing the opinion, and the court’s schedule.
https://www.scotusblog.com/supreme-court-procedure/

also see: https://www.supremecourt.gov/about/procedures.aspx

[Fiendish Thingy]

14. Roberts was trying to flip a vote to a less extreme ruling, and the leak put all cons on record. Nt

[Hekate]

15. They didn't want to tip their hands, maybe. And if it was a RW justice who leaked it, maybe they...

… were gloating.

[LetMyPeopleVote]

16. How the future of Roe is testing Roberts's clout on Supreme Court

There have been no doubt other drafts. There is some speculation that a conservative released this draft to try to keep Roberts from peeling off a vote for a more moderate opinion

Link to tweet

https://www.washingtonpost.com/politics/2022/05/07/supreme-court-abortion-roe-roberts-alito/

The mere existence of the draft indicated that five justices had voted at least tentatively to reject the incremental approach of Roberts to restricting abortion rights. Instead, they would reverse Roe after nearly 50 years of guaranteeing a right to abortion that could not be outlawed by the states......

It is another signal that the 67-year-old Roberts, hailed by scholars just a few years ago as one of the most powerful chief justices in history, is not in control of the process as the court readies its most influential decision in decades.

There is also reason to believe Roberts has not given up. Many who know him well and have watched his maneuvering of the court through other issues are certain he is still preparing his own opinion in hopes he might draw at least one of the court’s newest conservatives to his side. Such an outcome might save the 1973 ruling on Roe and the subsequent affirming 1992 decision, Planned Parenthood v. Casey, while severely limiting their protections.....

Roberts seemed to get no takers for a compromise that would erase the clear rule that Roe and Casey share, which is that states may not forbid abortions before viability, the point at which a fetus would survive outside the womb, usually 22 to 24 weeks.

Most observers of the court believe Roberts is still promoting a decision that would remove the viability line but otherwise keep Roe and Casey intact. Both liberals and conservatives are skeptical it can be done.

[blogslug]

17. Didn't he need to collect the signatures of Justices in agreement?

That takes time. The whole process of draft opinion-making is pretty involved from my brief googling. I was looking for info about it because "draft opinion" has always sounded kind of shady to me. I'm still not clear on how they get made into law or if they even do. Do draft opinions just sit on the shelf, waiting to be plugged into a ruling on the right case at the right time or what?

[Frustratedlady]

18. Your last sentence seems to be my confusion on this issue, as well.

I thought they ruled on what was brought before them, not initiate changes in laws already ruled on.

Being complicated and confusing has its benefits, I guess. Just not for us.

[blogslug]

19. Hoping some legal DUers will answer

I suppose I could research some more but it's the internet and I keep falling down rabbit holes.

[Buckeyeblue]

20. Maybe Roberts released it

He realized how tone deaf the opinion is and knew that if it became the official opinion the court would be the laughing stock of the three branches of government. And this opinion begs to be overturned as soon as the court majority shifts.

Maybe he thought the scorn that would follow the opinions release would either 1. Get a justice to shift to his incremental approach or 2. Result in the opinion being drastically revised.

I'm going to guess that this court is not as friendly with each other as previous courts claimed to be.

[Frustratedlady]

21. I haven't watched every move they've made, but I also get the feeling that Roberts is

uncomfortable with several decisions. I don't think he has as much control as he'd like to have.

Whatever happened, we're stuck until they nail this situation down. Thomas and wife were my first guess, since she's so hooked on thinking she's right. He has to be closing in on retirement, so stepping down wouldn't be a big deal. Getting kicked off would.

[Buckeyeblue]

22. I still think it's Clarence and Ginni

But it's easy to see why multiple parties may have done it. It's a mess.

[Ms. Toad]

24. This is perfectly normal for any hotly contested decision.

After the straw vote is taken (after oral arguments), a majority opinion is drafted. It is circulated - dissents and concurrences are written. Much wordsmithing and negotiating happens in order to pull justices one way or another before the opinion is finalized - typically the last week in June or the first week in July for the most watched opinions.

Sometimes - like the ACA - the majority switches, and there is a very different outcome. My guess is that Roberts was starting to be successful in peeling away one or more conservative votes - which would switch the majority (from overturning to potentially permitting more restrictions but not overturning). Someone dead set on overturning released an early draft (likely no longer the current draft) to ensure that those who originally voted with Alito didn't defect - leaking this is likely to make them dig their heels in to avoid the appearance they had bowed to pressure.

[EleanorR]

26. And being seen as caving to or siding with anything progressive brings out the true wackos

So in a way releasing this was a threat. Vote with the radical right or we'll paint you as caving to the left and send our cult after you and your family.

[Ms. Toad]

27. Exactly. n/t