Lifting the curtain on SCOTUS with a POLITICO reporter who broke the Roe story

This week on Playbook Deep Dive, POLITICO’s Peter Canellos talks with our own Josh Gerstein, who broke this week’s massive news that the Supreme Court’s conservative majority has drafted an opinion to overturn Roe v. Wade. This is the first time in modern history that the public has seen a Supreme Court draft decision while a case was still pending. The draft opinion, if it holds, would be the culmination of half a century of legal conservatives organizing around the idea that Roe was wrongly decided and needed to be reversed. No one can be sure what will follow and where it will lead. Peter and Josh nerd out on everything from the history of the court, to potential implications of the draft opinion — both for the country and the judiciary itself.

Transcribed excerpts from that conversation are below, edited for length and readability.

Peter Canellos: Do you think that this will lock in the five justices who have taken this position against Roe v. Wade initially so that if they suddenly surprise everybody by coming out with a different decision, people will know who changed their mind?

Josh Gerstein: Everybody's in a different position post-Monday's release of this draft opinion by POLITICO than they were before. It's the justices whose votes might potentially have been in play. It's Justice Alito who wrote this opinion and now if any word in it is different than what appeared in the draft, analysts, Supreme Court watchers, soothsayers are going to examine it in great detail and say "Why was this changed?” and “Who prompted that? and “Who asked for this?" You do sometimes see that kind of discussion of the Supreme Court, but that usually takes place 20 or 30 years after the decisions in question, when typically a justice dies and their papers become public.

I think it is likely to harden the established positions of the justices on this. And it's going to make it more difficult if there was a possibility that Chief Justice John Roberts was trying to sway one of the other conservatives to join him in some kind of more centrist position and opinion in this case that could conceivably have become the controlling opinion depending on how that process went. I think his task became much more difficult on Monday night.

Canellos: A lot of people are concerned about gay rights and gay marriage. Is that next on the agenda for the conservative bloc?

Gerstein: I think it's hard to say. The experts I've talked to say that arguably it is undermining the notion of Obergefell. The decision saying that there was a federal constitutional right to same-sex marriage does seem like it would be jeopardized by the kind of rationale that we see laid out in this draft opinion. Alito talks a lot about history, [that] it's so important whether this is a right that's been recognized through history. Well in the 1800s, nobody was talking about gay marriage and all sorts of unspeakable things were being done to people that were thought to be gay. So clearly, there's no lengthy history through America. There certainly is of people being gay, but not of their of that right being recognized by any government in the United States until obviously sometime in the 20th century.

When you look at those things, that's a right that would seem on paper to be in jeopardy. The question really is, is it in reality in jeopardy? And I think the answer is, as far as I can tell, not not at the moment. Like some people have pointed out, the Republican Party platform says we disagree with this decision and think it should be overturned. But I don't think there's a huge movement to try to overturn it. Perhaps in some conservative states. What I do think is that a decision like this one does give power and backing to people who are looking to contain that right, which means giving more power to people who are religiously motivated, who say they don't want to do business with folks that are having same-sex marriages or people that happen to be LGBT.

So I think you see an empowerment of those sorts of decisions that could contain or cut back that right, more than the likelihood. I don't see the conservative movement trying to make a big push in the next 15, 20 years to overturn gay marriage, in part because it's so popular. I mean, the way the polling numbers turned around on gay marriage as those issues went before the Supreme Court are stunning.

Canellos: Couldn't some of these things happen sort of accidentally if a case went before the Supreme Court, even if the public had accepted something? I guess I would say I would take your logic on other issues like interracial marriage, which also that was a right that was not recognized in the 1700s and 1800s. That was something that was criminalized well into the 20th century. But I would agree with you that there's no appetite now on the left, on the right or anything to try to make any movement on that area.

Whereas when it comes to to gay rights, I mean, right now in Florida, we have the “Don't Say Gay” issue, the law that is being passed by Ron DeSantis and the Republicans there. So couldn't, as you alluded to, a very Republican state come out with a law that would be very restrictive of the rights of gay couples and that case make it up to the Supreme Court and then you have these same five justices who would rather be ideologically right and pure on the court than respect stare decisis? No matter how many people in the country support it, couldn't that turn out to jeopardize the rights of LGBTQ people?

Gerstein: I think it could happen. My gut tells me that it would be more likely to happen in an incremental way than to happen in the dramatic way that it appears that Roe v. Wade is going to go into the trash bin of history if this opinion is sustained over the next couple of weeks. I doubt that the appetite is present for these justices to do that. They did sign on — or we believe they've signed on — to this opinion and the language in it that says this applies only to abortion and nothing else, which does seem very defensive. Well, who said that it might apply to a bunch of other things?

That's one of the fascinating things about seeing the draft opinion is all the defensive statements in it that seem to anticipate things that dissenters are likely to write that based on our reporting, they haven't actually written yet. And we're still waiting to see what they do, to see the ways in which Alito and perhaps Alito's conservative colleagues tried to preempt those arguments. To see that in real time is kind of a unique access to the process that we haven't seen before.

So I would say I do think that they may feel empowered in other areas related to gay rights but I don't think is sort of head-long run into Obergefell is very likely from this court, especially until we get at least some change in the lineup of justices on the conservative side because they have pledged explicitly not to really spread this beyond Roe v. Wade. I think it would be easier for the court to do that if there was a little bit of a change in blood at the bench there.

Canellos: What are you anticipating in terms of the liberal justices dissent? You can imagine two themes that they might explore. One is a full throated defense of unenumerated rights and why privacy is essential to the Constitution and really try to take on the legal arguments in Alito's draft, assuming that that remains the majority opinion.

You could also imagine a full throated decrying of the politicization of the court, of the way in which the Federalist Society and conservative politicians have strategized to bring about the end of Roe v. Wade and appear to have succeeded through the political process, sadly, taking the Supreme Court down with it. Do you think they'll go that far? You could argue and you imagine poor Chief Justice Roberts in the middle saying to the liberals “Please don't don't tell everybody that the Supreme Court is discredited by this. Try to keep it on a high plane, please.” Do you think they will keep it on a high plane?

Gerstein: Not all of them, I don't think so. I would predict that we'll have several dissents. It could be the case that each of the liberal justices writes a dissent and they probably all join in each others’ dissents. If I had to guess what the themes would be like, I would say Justice Breyer has historically expressed interest in this whole issue of the Ninth Amendment and enumerated unenumerated rights and whether it's important in our country to have the Bill of Rights reflect not only those rights that are listed, but that there are many other rights that Americans enjoy that are not there and the litany of other things that the court over the years has found that aren't specifically stated there. Some of the things that people take so much for granted, not just the ones I've seen on the lists related to this opinion, but others like the right that you have an attorney if you're accused of a crime. That's not in the Constitution — it's something that the court said and derived from other things like due process or what have you. If you're really going to say “If it's not in there, then you don't get it,” or we're just going to leave it up to any state legislature to decide what they want to do, that could be a pretty sweeping decision.

I think you probably will have Kagan engage more about the legal underpinnings of Roe and make more arguments on the legality. And if you're looking for arguments about the outrage and the perception of the court's reputation, the signal so far would be that you're most likely to get that from Justice Sotomayor, because she's the one who couldn't help herself but at arguments to say how will the court survive the stench of this on its reputation? I don't think her language in an opinion that would be responding to the court actually striking down Roe v. Wade is going to be any more reserved than her language was publicly at the arguments in December.

Canellos: Just the contours of our conversation have been that there are five conservatives who have asserted themselves in terms of making a very strong, principled stance in this case, and that there are three liberals who can be presumed to write very scorched-earth dissents. [Chief Justice] Roberts’ position is maybe more sympathetic with the conservatives, but overwhelmingly he's concerned for the institution of the Supreme Court. As you very smartly informed us it has literally affected his votes in other cases, his belief that the court should have a degree of finality when it decides things and moves on things. Is that Roberts’ position? Is Roberts now sort of a lonely man on his own court on an island of one? Or are there things that he can do to help to repair the court in the short term, to kind of undo this perception that they are, first of all, elite and unpoliced and second of all, that they are prone to political manipulation?

Gerstein: I've been talking to a lot of people who watch the court and track the court closely about this over the last couple of days and I hear two different schools of thought. One is that Roberts is trying as best he can to be a steady hand on the tiller and that things are not as bad as it might appear because opinion happened to leak out in a very, very contentious case. And this school of thought would say, you know, it isn't really a 6-3 court when you look at many of the decisions that have come out over the last year or two. Some of them are like 3-3-3 decisions. Yes, the liberals are tending to vote together. But there's another wing on the right which has Justices Alito, Gorsuch and Thomas, who tend to take the most extreme conservative position in each case. In many of the cases, Justices Roberts and Kavanaugh and Barrett are kind of in play, and they come up in different combinations and they side with each other in different ways. That is sort of healthy, normal, operating of a moderate court, and that there's no great need to be alarmed that something is terribly wrong and going off the rails.

The other people seem to think there's like a major breakdown of some sort at the court and that Roberts is sort of unable to exercise any real degree of leadership, finding himself in such escapades as refereeing mask disputes between Justice Sotomayor and Justice Gorsuch and now in this case finds himself sort of impotent, right? Because you have a six justice conservative majority, which he's ostensibly part of, but he doesn't agree on taking down Roe. But chief justice being first among equals, he doesn't really have any outright power to affect the decision. Maybe he makes some effort to try to assign it a certain way. But what's the point if he's the only justice in the middle of the court trying to assign an opinion to himself that no one else is going to join. The ship has sailed. Donald Trump got three appointments to the Supreme Court and times have changed. The court isn't where it was five years ago or ten years ago or 20 years ago, which is when Roberts came in as chief justice. And so I'm hearing dueling arguments. Maybe the truth lies somewhat in the middle. I doubt that the whole thing has completely broken down.

But I happen to think that the conservatives probably are fairly annoyed with Roberts and are bearing a number of grievances. Remember, it's not just Obamacare. I think we mentioned that earlier in the show, but there's been a bunch of other decisions that are closely watched, especially among legal experts, on issues like Trump's effort to repeal the Dreamers program that Obama had set up, where Roberts crossed over and joined with the other side. So he's had a series of decisions not strictly involving Obamacare where he's taken a more moderate view that annoyed other members of the court. Many of those cases continue to resound in other disputes that keep coming before the court. So it's not lost on the conservatives that he has, in their view, been unfaithful to their cause.