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The Supreme Court will issue a batch of opinions on an unknown number of cases Monday, but the highly-anticipated decision that could determine the fate of abortion protections is likely weeks away, according to judicial experts.
The decision in Dobbs v. Jackson Women’s Health Organization — which deals with abortion precedents set decades ago in the 1973 Roe v. Wade decision — is highly complex and perhaps the most controversial action the court will take this year. Despite the country’s eagerness to have a resolution, the court may need more time to conclude its process.
“Typically, more controversial cases are decided the last day of the term. So I do not expect Dobbs on Monday,” Brennan Center fellow and Stetson University law professor Ciara Torres-Spelliscy told Fox News Digital in an email. The court typically concludes its work by mid-June or July, then begins a summer recess.
A leaked draft opinion for Dobbs, written by Justice Samuel Alito in February and published by Politico May 3, indicates that the Supreme Court may have the votes to overturn Roe. The draft, which the court confirmed as genuine, does not reflect the final decision of the court. But that hasn’t stopped abortion-rights advocates and pro-life activists from speculating about the final results.
Protesters gathered Saturday in dozens of cities across the country for “Bans Off Our Bodies” rallies, pushing for legal protection of abortions to stand. Groups have picketed in front of the homes of justices appointed under Republican presidents multiple times since the draft decision leaked.
Demonstrators hold signs during a protest outside the U.S. Supreme Court in Washington May 3, 2022, after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year. (REUTERS/Evelyn Hockstein)
Yet the Supreme Court’s processes and timelines for considering cases are unlikely to change due to the immense public pressure for a decision.
“With about seven weeks until the end of the term and many cases still pending, it’s not unusual for the court to have opinion days one or more times per week this time of year,” Judicial Crisis Network’s Carrie Severino told Fox News Digital. “I hope to see the Dobbs decision released as soon as possible, but it’s hard to read much into the fact that Monday is an opinion day.”
Doron Kalir, law professor at Cleveland State University’s Marshall College of Law, told Fox News Digital that he rates the possibility of the Supreme Court releasing a Dobbs decision Monday as a “low-to-zero chance.”
The court, for one thing, has supposedly not circulated dissenting opinions to Alito’s February draft, according to further leaks on the process. The three liberal justices — Steven Breyer, Elena Kagan and Sonia Sotomayor — have not circulated dissenting opinions months after Alito’s draft circulated, Politico reported last week.
The Roberts Court, April 23, 2021. Seated from left to right: justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and justices Stephen G. Breyer and Sonia Sotomayor. Standing from left to right: justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch and Amy Coney Barrett. (Fred Schilling, Collection of the Supreme Court of the United States)
“I would be shocked if Justice Sotomayor, Justice Kagan and — separately — Chief Justice [John] Roberts would remain silent on this draft and would not issue their own dissents,” Kalir said. Justices typically circulate draft opinions among each other for comment and revision, a process that takes an unknown amount of time.
Alito’s opinion also appears very much like an unfinished draft, according to Kalir.
“It has many repetitions. It contains an especially harsh, dismissive and, at times, contemptuous tone towards the Justices who authored Roe and then those who affirmed it in Casey,” Kalir said. “If for no other reason than self-preservation, I assume that justices such as [Neil] Gorsuch and [Brett] Kavanaugh would like to temp those down — both reduce the number of times where the draft suggests Roe was ‘egregiously wrong’ and the overall tone mocking generations of great Supreme Court jurists.”
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Demonstrators protest outside the U.S. Supreme Court May 4, 2022, in Washington. (AP Photo/Alex Brandon)
Kalir also thinks releasing the decision now would be a bad move politically “when the media frenzy is at its highest.”
“First and foremost, the court would like to cool down some of the heat before it releases the — what I would assume to be — slightly-revised final opinion, with the two (or more) dissenting opinions,” Kalir said.
The blistering draft opinion may be softened before the final version, according to Elliot Slotnick, professor emeritus at Ohio State University.
“An opinion like the one we’ve seen would tear the court apart, not to mention the country as well,” Slotnick told Fox News Digital. “Whether the reasoning and decision will stand is up in the air.
“We don’t know what stage of the court’s decisional process [the draft opinion] represents. The draft doesn’t appear to represent a consensus of six justices, or perhaps even five, of the nine justices.
Supreme Court Chief Justice John Roberts prior to President Biden’s State of the Union address during a joint session of Congress at the U.S. Capitol March 1, 2022, in Washington. (Julia Nikhinson-Pool/Getty Images)
“I’m certain the chief would like to be able to join in a majority opinion that was considerably ‘softer’ in tone. And, I think, the same might be said of (at least) Kavanaugh, perhaps others,” Slotnick added. “Of course, there’s a reasonable chance that I’m 100% wrong.”
The Supreme Court doesn’t announce in advance what opinions will be released, but the court has dozens of cases on the docket that have been argued but not ruled upon. Though not all cases may receive the same length of opinion, some could have broad implications for constitutional rights.
The court has yet to release a decision in New York State Rifle & Pistol Association, Inc. v. Bruen, possibly the most significant gun-rights case before the high court in more than a decade. The case was argued in December and involves two people in New York who were denied concealed carry permits for self-defense. And Carson v. Makin challenges a Maine law that restricted state tuition for children attending religious schools.
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Whatever the status of decisions on those cases, having an inside look at the process through leaks is a new phenomenon, one that many court watchers have called damaging to the independence of the judiciary.
“I do think that what happened at the court is tremendously bad. … I wonder how long we’re going to have these institutions at the rate we’re undermining them,” Justice Clarence Thomas said at the Old Parkland Conference Friday.