Reporter’s Notebook: What the Supreme Court’s Leaked Draft Opinion Means for Congress

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The leak of the High Court’s draft opinion could have far-reaching consequences across the street at the United States Capitol.

Whatever the motives surrounding such an extraordinary leak, the forward-looking decision becomes an immediate flashpoint in the midterm elections. Democrats will no doubt use the leaks to fuel their base and get them to the polls. There is huge pent-up anger on the left over the confirmation of three judges under former President Trump.

SUPREME COURT APPLIES TO OVERRIDE ROE V. WADE, LEAKED DRAFT OPINION SHOWS: REPORT

A crowd of people gather outside the Supreme Court, Monday evening May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them backed the overturning of the 1973 Roe v. Wade case that legalized abortion nationwide. country, according to a report published Monday evening in Politico. It is unclear whether the draft represents the court’s final say on the matter. The Associated Press could not immediately confirm the authenticity of the draft published by Politico, which, if verified, marks a shocking revelation of the High Court’s secret deliberation process, particularly before a case came to light. be officially settled. (AP Photo/Anna Johnson)
(AP Photo/Anna Johnson)

Some Republicans will concede that being able to push to unseat Roe has helped them politically for years — even if they got little political benefit. Now the Democrats can be on the other side and can reap the gains politically – even if they vehemently oppose politics.

Democrats will point to what they will call tactics used by Republicans to secure a pro-life majority on the Court that overthrows Roe.

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

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

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A crowd of people gather outside the Supreme Court, Monday evening May 2, 2022 in Washington.  A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them backed the overturning of the 1973 Roe v. Wade case that legalized abortion nationwide. country, according to a report published Monday evening in Politico.  It is unclear whether the draft represents the court's final say on the matter.  The Associated Press could not immediately confirm the authenticity of the draft published by Politico, which, if verified, marks a shocking revelation of the High Court's secret deliberation process, particularly before a case came to light. be officially settled.  (AP Photo/Anna Johnson)

A crowd of people gather outside the Supreme Court, Monday evening May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them backed the overturning of the 1973 Roe v. Wade case that legalized abortion nationwide. country, according to a report published Monday evening in Politico. It is unclear whether the draft represents the court’s final say on the matter. The Associated Press could not immediately confirm the authenticity of the draft published by Politico, which, if verified, marks a shocking revelation of the High Court’s secret deliberation process, particularly before a case came to light. be officially settled. (AP Photo/Anna Johnson)
(AP Photo/Anna Johnson)

This was followed by Judge Brett Kavanaugh’s harmful confirmation process in 2018.

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

Inevitably, the leak will prompt Democrats to push for passage of a bill codifying Roe.

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

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

FILE - On this April 23, 2021, members of the Supreme Court's file photo 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 – On this April 23, 2021, members of the Supreme Court’s file photo 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)

This, in turn, reinvigorates the effort to end the filibuster or lower the threshold to end a filibuster from 60 to 51. This means that 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 run another “nuclear option” in the Senate to amend the filibuster. Democrats could pull off this parliamentary maneuver if they stick together.

The Senate fell very short to break up a buccaneer 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 the current circumstances to codify Roe – let alone setting a new Senate precedent and ending 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 Street, NE and through the heart of the United States Capitol.

About Michael S. Montanez

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