Last night an unprecedented leak revealed an unprecedented bombshell.

Most courts are rather tight-lipped about cases that have been heard but not decided.  Judges and the support staff that works for them understand that, for multiple reasons, they should not talk about a decision until it is officially released.

Now, no system is perfect, and periodically, there are leaks about the internal operations of the court.  But, to the best of my knowledge, there has never been a leak of a draft opinion prior to the official release of the official opinion.

This unprecedented leak requires putting the leak in context.  Other folks on other sites have commented at length on how bad this draft is as an opinion — both legally and in terms of its impact on women.

So I am going to focus on what it means as a draft.  As noted over the years in discussing Supreme Court opinions, after the Supreme Court hears arguments on a case, it takes a tentative vote.  The Senior Justice in the majority than assigns a justice to draft an opinion.  Given what we know about the justices, it is almost certain that if Chief Justice Roberts had been in the majority, he would have taken the opinion himself or assigned it to Justice Gorsuch or Justice Kavanaugh.  The fact that Justice Alito got the opinion signals a 5-4 split with Justice Thomas having control over the assignment.

The second thing is that this draft appears to have been circulated in February.  Given the timing of the argument, this draft was probably the first draft circulated to the other justices.  It is likely that other justices in the majority have suggested changes since then.  The ultimate votes will probably not change, but the language will change.  In short, the draft released last night is probably not even the current draft much less the final version of the opinion.

Third, it takes five justices for an opinion to become the opinion of the court.  If there are only four justices willing to join an opinion, it is just a plurality opinion which is not binding precedent.  Every year, there are cases in which no opinion gets a majority.  In that case, lower court judges try to figure out where the fifth vote was to determine what rule that swing vote is directing lower courts to follow.  In some cases, it is obvious is the middle justice proposes a standard that is less stringent than one side but more stringent than the other side.  In others, you simply have three different tests that are not in the same legal universe with no test being clearly easier or tougher than the others.   According to people reading between the lines of the leak, the leak was very clear about the justices in the majority on the original vote but did not state that all five of those justices were in agreement with the February draft.

Which means that there is still time for things to change.  Given this split, I think that it is highly likely that the Supreme Court will uphold the Mississippi statute (barring abortions after the fifteenth week).  Whether or not Chief Justice Roberts can get one of the three Trump appointees to adjust the current standards to find a way to allow the Mississippi statute without officially overruling Roe is the issue for the next eight weeks.

But by June, the final version will be released.  Regardless of the final language, this draft is a sign that what those of us who pay attention to the Supreme Court have been noting for several years.  The current crop of up-and-coming conservative lawyers are not your parents and grandparents form of conservative legal thought.  They are far out on the limb reactionaries who are willing to rewrite history and the law to get their desired results and see law as simply another tool of partisan politics.  Unfortunately for moderate and progressives, conservatives have long recognized that control of the judiciary is critical to their agenda and see every election as critical because you never know when a vacancy on the Supreme Court might occur.  The failure of Democrats to win control of the Senate in 2014, 2016, and 2018 and to win the White House has allowed Senator Turtle to block the ability of the Democrats to fill a vacancy in the Spring of 2016 and to place three ultra-conservatives on the Supreme Court in 2017, 2018, and 2020.  Those three justices are now key to the end of reproductive freedom in the United States.

One other thing to note, the draft opinion tries to create a false image of itself as exercising judicial restraint by suggesting that it should not impact other decisions.  But applying its own test to those other rights, it simply defies credibility to believe that those current precedents are safe if the will exists on the right to try to roll back other rights — including contraceptives, same-sex marriage, and even the right to same-sex relationships.  This current majority has made clear that it does not respect precedent.  And no precedent is safe.

Last thoughts.  There are steps that Congress could take to protect reproductive freedoms.  However, it is unlikely that there are 60 votes in the Senate to overcome the filibuster.  If Democrats can keep the majority in the House and gain a working majority in the Senate (i.e. one that does not depend on Senator Sinema and Senator Manchin), perhaps a legislative solution could fix things.  But for the next eight months, the party of oppression will be pushing hard in state legislatures to deprive women and minorities of rights that took decades to gain.