By Reinhard von Hennigs


Last week, the Supreme Court caused national panic with the leak of Justice Alito’s drafted majority opinion in Dobbs v. Jackson Women’s Health Organization. The opinion’s stunning conclusion that Roe v. Wade is to be overturned spurred headlines–but a lot is still up in the air. 

How did we get here?

In Dobbs, a clinic in Mississippi challenged the constitutionality of Mississippi’s Gestational Age Act, which prohibits abortions after the fifteenth week of pregnancy, with the exception of medical emergencies and fetal abnormalities. The constitutional conflict arises because the Supreme Court in Roe v. Wade held that states could not ban abortions before the twenty-fourth week of pregnancy, which is when a fetus becomes viable. The Supreme Court’s authority to decide Dobbs derives from appellate jurisdiction. Appellate jurisdiction authorizes the Supreme Court to review the decisions of lower courts. U.S. CONST. Art. III § I. Congress sets the number of Supreme Court Justices. Since 1869, there have been nine Justices who hold their position for life. Although Justice Alito has a reputation as a staunch conservative, Justices, just like judges, are charged with interpreting the law in an unbiased manner. As Chief Justice Roberts stated in 2005, “It’s my job to call balls and strikes, and not to pitch or bat.” Jake Smith, Supreme Court Justices Become Less Impartial and More Ideological When Casting the Swing Vote, Northwestern University, (last visited May 6, 2022).

How is a case selected to be heard by the Supreme Court?

The predominant way to ask the Supreme Court to use its appellate review power is to petition the Court for certiorari. When a petition for certiorari is granted, the Supreme Court orders the applicable lower court to send the record of the case to the Supreme Court for it to be heard. There are about 7,000 petitions for certiorari each year, but only 80 to 150 cases are selected. Cases are more likely to be selected if they “could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value.” Supreme Court Procedure, U.S. Courts, (last visited May 5, 2022). Thomas Dobbs of the Mississippi Department of Health petitioned for certiorari after the Fifth Circuit ruled in favor of the plaintiff, Jackson’s Women’s Health Organization. This petition initiated the process of Supreme Court review. 

How are cases like Dobbs selected in the first place?

The Justices’ law clerks read the petitions for certiorari that they are assigned, write a brief memorandum about the underlying cases, and make a recommendation on whether the case should be heard. The Justices take the memorandums and recommendations and decide which cases to hear at the Justices’ Conference. If the Justices grant a writ of certiorari, accepting the case to be heard by the Supreme Court, the case is placed on the docket, and oral argument preparation begins. On May 17, 2021, the Court issued a writ of certiorari to hear Dobbs on the sole question of whether all pre-viability prohibitions on elective abortions are unconstitutional. 

How does the Supreme Court hear cases like Dobbs?

Each case is allotted one hour for oral argument, so each party receives thirty minutes to make their case to the Justices and answer the questions that the Justices have. At the conclusion of oral arguments, the Justices conduct another Justices’ Conference to decide the cases and publish opinions. Four votes are needed to grant certiorari, and five votes are needed to stay certain proceedings, such as execution. 

What is a “majority opinion”?

There are five different opinions the Court can issue. First, the Court can issue a unanimous opinion if all Justices are in agreement. Second, if five or more Justices agree, the Court can issue a majority opinion–which has precedential value and is considered part of the “supreme Law of the Land.” Third, the court can issue a plurality opinion, which occurs when the opinion does not have enough votes to be considered a majority opinion. The plurality opinion is the opinion with the greatest number of votes from the Justices, but it does not have precedential value. Fourth, the Court can issue a dissenting opinion if they disagree with the holding of the majority. Lastly, the Court can issue concurrent opinions, in which the Justice(s) voted for the majority opinion, but they disagree on the rationale of the majority opinion. Concurrent opinions also lack precedential value.

Why did Justice Alito draft the majority opinion?

The most senior Justice of the majority determines which Justice writes the majority opinion. If there is a dissent, the most senior Justice of the dissenting Justices determines which Justice writes the dissent. Any Justice may also decide to write their own dissenting or concurring opinion if their rationale differs from the other Justices. In Dobbs, Justice Alito was designated to draft the majority opinion.

When is an opinion final?

In response to the Dobbs leak, Chief Justice Roberts confirmed the authenticity of the drafted opinion with an important caveat–“it does not represent a decision by the Court or the final position of any member on the issues in the case.” Robert Barnes And Ann Marimow, Supreme Court will investigate leaked draft of abortion opinion, Washington Post, (last visited May 5, 2022). Drafts of opinions are circulated among the Justices and are often amended based on their viewpoints. There is always a chance that the draft opinion looks utterly different from the final opinion. For the majority opinion to be final, a majority of the justices must sign onto the opinion, and the opinion must be made available. The leak of the Dobbs opinion is unprecedented. There has never been a leak of a Supreme Court majority opinion in the Court’s history. There have been instances of votes and decisions before rulings were publicly announced, but this is the first time a majority opinion has been released prematurely.

Doesn’t the U.S. Supreme Court have to follow its own rulings?

Justices often base their opinions on previously settled law. The doctrine of stare decisis is the fundamental concept that courts, including the Supreme Court, will adhere to precedent in making their decisions. Stare decisis is a Latin phrase that means “to stand by things decided.” Under stare decisis, cases that have similar facts should have similar outcomes. The Supreme Court establishes national binding precedent through majority opinions, to which all states must adhere. State courts are not permitted to overrule or undermine the decisions of the Supreme Court, but the Supreme Court is permitted to overturn decisions that they previously made. The concept of stare decisis emphasizes that the Supreme Court should not be hasty when revisiting prior rulings and should maintain a level of stability in the law–thereby minimizing the potential ripple effects of overturning precedent. 

How often does the Supreme Court overrule its own precedent?

The Supreme Court rarely overrules its own precedent. Since the establishment of the Court, less than two percent of cases have been overturned. Arguably the most famous instance of the Court overturning its own precedent was the landmark equal protection case that desegregated public schools, Brown v. Board of Education is a landmark case where the Supreme Court overturned its own precedent, ultimately desegregating the country. In the Dobbs draft majority opinion, Justice Alito’s analysis would overturn Roe. Roe affirmed the right to abortion under the Fourteenth Amendment’s protection of liberty through the right to privacy. Justice Alito claimed that abortion does not fall within the right to privacy; therefore abortion regulation should be delegated to the states.

What will happen if Roe v. Wade is overturned?

If Roe v. Wade is overturned, the domain of abortion rights will shift from the judiciary to the legislature. As Justice Alito concluded in the leaked opinion, “[t]he Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” [leaked opinion at 67]. State legislatures can take steps to codify Roe, which would involve drafting and passing bills that provide the same protections that Roe gives. This is unlikely to occur in a majority of states, as, according to Justice Alito “26 States expressly asked the Supreme Court to overrule both Roe and Casey,” and these states are poised to restrict access to abortion medicine. [leaked opinion at 4] In fact, there are already thirteen states with “trigger laws” that would ban abortions if Roe is overturned. Some states will take measures to stabilize access to abortion care and will likely enact policies to make abortions accessible to out-of-state residents. The House-passed Women’s Health Protection Act faces significant hurdles on a federal level. The filibuster must first be ended so that this legislation may pass with a simple majority. For now, nobody knows what the future of abortions looks like. One thing that is certain is that there will be an investigation into the leaking of the majority opinion to prevent it from happening again.


Der Autor

Der Autor dankt Athena Henry. Athena Henry ist eine Jura-Studentin (2L) an der Elon Law School und hat diesen Artikel gemeinsam mit dem Autor verfasst. Reinhard von Hennigs ist Chairman und Gründer von BridgehouseLaw LLP, einer internationalen Anwaltskanzlei mit Büros in den Vereinigten Staaten, Kanada und in Deutschland. Er ist als Attorney at Law (North Carolina), als Rechtsanwalt in Deutschland und in Georgia als Foreign Law Consultant zugelassen, sowie bei dem United States Supreme Court.