Reporter’s Notebook: The Hitchhiker’s Guide to What the Leaked SCOTUS Draft Opinion Means for Congress

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The leak of the draft opinion from the High Court could have profound consequences across the street at the U.S. Capitol. 

Regardless of the motives surrounding such an extraordinary leak, the prospective decision becomes an immediate flashpoint in the midterm elections. Democrats will undoubtedly use to leak to stoke their base and get them to the polls. There is tremendous pent-up anger by the left after the confirmation of three justices under former President Trump. 

SUPREME COURT SET TO OVERTURN ROE V. WADE, LEAKED DRAFT OPINION SHOWS: REPORT

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter.  The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided. (AP Photo/Anna Johnson)

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter.  The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided. (AP Photo/Anna Johnson)
(AP Photo/Anna Johnson)

Some Republicans will concede that being able to push to overturn Roe helped them politically for years – even though they got little policy benefit. Now Democrats may be on the other side of that and can reap the gains politically – even though they vehemently oppose the policy. 

Democrats will point to what they will term as tactics used by Republicans to achieve a pro-life majority on the Court which overturns Roe. 

First, then-Senate Majority Leader Mitch McConnell (R-KY) refused to even grant a hearing to Attorney General Merrick Garland when President Obama nominated him for the Supreme Court in 2016. 

Then, in 2017, McConnell used the “nuclear option” (invented by Democrats) to confirm Justice Neil Gorsuch. 

RACHEL MADDOW ON SCOTUS DRAFT: IF A REPUBLICAN WINS IN 2024, WE’LL HAVE ‘A NATIONWIDE ABORTION BAN IN AMERICA’

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter.  The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided. (AP Photo/Anna Johnson)

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It’s unclear if the draft represents the court’s final word on the matter.  The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court’s secretive deliberation process, particularly before a case is formally decided. (AP Photo/Anna Johnson)
(AP Photo/Anna Johnson)

That was followed by the noxious confirmation process for Justice Brett Kavanaugh in 2018. 

Then the Senate managed to confirm Justice Amy Coney Barrett just before the 2020 election. 

Inevitably, the leak will spur Democrats to push for passage of a bill to codify Roe. 

The House approved the Women’s Health Protection Act in September of last year in response to the Texas bill to bar abortions after six weeks. The vote was 218-211. This leak will compel Senate Democrats to try to pass this measure. However, it will face a filibuster. 

MCENANY: IF SUPREME COURT LEAK STORY IS TRUE, ‘IT WOULD SEEM TO ME [SOMEONE] WITH A MOTIVE CLEARLY LEAKED IT’

FILE - In this April 23, 2021, file photo members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool, File

FILE – In this April 23, 2021, file photo members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool, File
(Erin Schaff/The New York Times via AP, Pool)

In turn, this reignites the effort to end the filibuster or lower the threshold to end a filibuster from 60 yeas to 51. That means all attention will immediately turn to, you guessed it, Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ). Democrats would need the votes of Manchin and Sinema to execute yet another “nuclear option” in the Senate to alter the filibuster. Democrats could execute this parliamentary maneuver if they stick together. 

The Senate fell well short of breaking a filibuster to begin debate on the House bill to codify Roe on February 28. This underscores why it is impossible to pass a bill in the Senate under present circumstances to codify Roe – to say nothing of establishing a new Senate precedent and ending the filibuster via the nuclear option. 

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So while Monday night’s leak is seismic for the Supreme Court, the fault lines also run directly under 1st St., NE and into the heart of the United States Capitol.

Mojtaba Sadira

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