The Morning Dispatch: Supreme Court Reportedly Poised to Overturn Roe v. Wade

Happy Tuesday! Dispatch Live is back tonight at 8 p.m. ET/5 p.m. PT! As you will soon see, there will, uh, be no shortage of things to talk about.

Quick Hits: Today’s Top Stories

• Late Monday night, Politico published what it reported as a draft majority opinion from Justice Samuel Alito showing the Supreme Court is prepared to overturn Roe v. Wade this term. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett reportedly voted with Alito to overturn the legal precedent governing abortion, and, according to Politico’s source, that lineup remains unchanged as of this week. “Roe was egregiously wrong from the start,” Alito writes in the initial draft, which is not final until released by the Court—likely in the next two months. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

• In a 9-0 decision, the Supreme Court ruled on Monday that the city of Boston violated the First Amendment by blocking Harold Shurtleff’s request to fly a Christian flag on one of three flagpoles outside City Hall during an event in 2017. The city had approved nearly 300 such requests between 2005 and 2017 but rejected Shurtleff’s application out of fear flying a religious flag on government property would violate the Establishment Clause. Writing for the majority, Justice Stephen Breyer argued Boston’s “lack of meaningful involvement in the selection of flags … leads the Court to classify the third-party flag raisings as private, not government, speech.”

• U.S. District Judge Timothy Kelly—a Trump appointee—rejected the Republican National Committee’s effort to block one of its third-party vendors from releasing records to the January 6 Select Committee, arguing the subpoena does not violate the First or Fourth Amendments. Kelly also shot down the RNC’s broader claim that the Select Committee itself is illegitimate because Speaker Nancy Pelosi rejected GOP members recommended by Minority Leader Kevin McCarthy. The committee subsequently announced it was requesting testimony from GOP Reps. Andy Biggs, Mo Brooks, and Ronny Jackson about the events leading up to January 6.

• Gen. Valeriy Zaluzhniy—Ukraine’s military chief—claimed one of the country’s Bayraktar TB-2 drones destroyed and sank two Russian navy ships in the Black Sea on Monday. Ukraine’s Defense Ministry released footage it says depicts a strike on one of the patrol boats, but the Kremlin has yet to confirm or comment on the claims.

Politico’s Roe v. Wade Bombshell

There are bombshell reports, and then there’s what Josh Gerstein and Alexander Ward uncovered last night.

Just after 8:30 p.m. ET, Politico published what Gerstein and Ward claim to be a draft majority opinion from Justice Samuel Alito showing the Supreme Court is prepared to fully overturn both Roe v. Wade and Planned Parenthood v. Casey later this summer. “Roe was egregiously wrong from the start,” Alito allegedly writes. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Such a ruling in Dobbs v. Jackson Women’s Health Organization has been within the realm of possibility for months—we reported after oral arguments in December, for example, that a majority of justices seemed willing to do away with the legal precedents governing abortion law in the United States—but the leaking of a draft decision prior to a final ruling is near unprecedented. Veteran watchers of the Supreme Court could conjure up only a handful of instances where the body’s intentions were revealed ahead of schedule, and never has a premature opinion been published in its entirety for the whole world to see. 

Gerstein and Ward say they received the draft—which The Dispatch cannot independently verify—from “a person familiar with the court’s proceedings,” and a similar such person—possibly the same one—told them Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett had voted with Alito after hearing oral arguments in December, and that this  configuration “remains unchanged as of this week.” Shortly after the Politico story broke, CNN reported that, although Chief Justice John Roberts is not onboard with a complete reversal of Roe and Casey, he is willing to chip away at the precedents by upholding the 15-week ban at the center of Dobbs.

Alito’s draft opinion—67 pages long, with a 30-page appendix—appears to be legitimate, but that doesn’t necessarily mean this version will be the final one. The document—labeled a “1st Draft”—is dated February 10, 2022, meaning one or more subsequent iterations could have been circulated with revised language in the nearly three months since. And it wouldn’t be unprecedented for the justices’ post-oral argument votes to change over the course of deliberations.

And there lies the biggest problem with the leak. While the Politico journalists didn’t provide a window into their source’s motivations, the disclosure is almost assuredly an effort to sway the ultimate outcome in the case one way or another. Speculation abounded last night: Did a liberal justice or a law clerk publicize the draft to gin up progressive and media outrage and pressure one of the five justices in the majority to flip his or her vote? Or was it a conservative justice or clerk attempting to lock Alito into his position and prevent him from watering down the opinion as the term draws on? Could Roberts have strayed from his institutionalist ways in a last-ditch effort to sway Kavanaugh or Barrett to his narrower interpretation? Maybe the document was obtained by a third party in an unauthorized manner—anything ranging from a sophisticated hack to a janitor pulling some paper out of a garbage can?

Whatever happened—and there will surely be an investigation, likely followed by a disbarment, impeachment, or criminal charge—the destabilizing effect on the Court will be profound. Not only does the leak strike at the heart of the body’s legitimacy in the eyes of the public, it undoubtedly creates tension among the justices themselves. “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff,” noted Amy Howe, Supreme Court analyst at SCOTUSblog. “This leak is the gravest, most unforgivable sin.”

Within hours of the story’s publication, hundreds of protesters—both pro-choice and pro-life—had assembled outside the Supreme Court to chant slogans, hold up signs, and shout at one another. Sen. Bernie Sanders called on the Senate to codify Roe v. Wade into federal law “NOW,” perhaps forgetting there aren’t even 50 Democratic votes for doing so, let alone the 60 necessary while the filibuster remains intact. Speaker Nancy Pelosi and Majority Leader Chuck Schumer argued Alito’s opinion would be an “abomination” if formalized, and Sen. Richard Blumenthal said Democratic senators would do what they can to “support states that resist” the ruling.

But as we noted a few weeks ago, a complete reversal of Roe and Casey wouldn’t automatically outlaw abortion nationwide—it would effectively revoke the constitutional right to one, allowing state legislatures and governors to implement as many—or as few—restrictions as their voters will allow. At least 13 states have “trigger laws” on the books that would implement new restrictions in the event Roe and Casey are overturned, while at least 17 others have laws that would guarantee abortion’s legality. Monday’s news will likely spur more into action, one way or the other.

Whatever the Supreme Court ultimately decides, the political waters these next few months will be choppy—and Alito himself seemed to acknowledge as much. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” his draft opinion reads. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.”

DHS’ Disinformation Governance Board: Mary Poppins or 1984?

In February 2021, misinformation researcher Nina Jankowicz posted a video of herself singing a parody she’d written of the classic Disney song, “Supercalifragilisticexpialidocious,” encouraging her followers to “call [her] the Mary Poppins of misinformation.” Fast forward 15 months, and she’s now head of the Department of Homeland Security’s (DHS) newly minted Disinformation Governance Board (DGB).

DHS hasn’t provided many details about how the entity will operate. Its mere existence was announced in a series of congressional hearings last week, with Homeland Security Secretary Alejandro Mayorkas telling lawmakers the DGB will focus on both Russian disinformation campaigns targeting elections and human smugglers’ social media posts encouraging migrants to attempt a journey to the United States’ southern border. The agency declined interview requests last week, but told the Associated Press in a statement that “the spread of disinformation can affect border security, Americans’ safety during disasters, and public trust in our democratic institutions.”

Some conservatives saw some limited benefits. “In theory, this proposal doesn’t have to be a terrible idea,” Jim Geraghty wrote for National Review. “If this new DHS group spends its time publicly declaring that there are no special, secret, or little-known loopholes for migrants who wish to enter the U.S., it will do some good.”

But the board’s ominous sounding name—and the administration’s insufficient explanation of its purpose—set off many Republicans’ alarm bells. “Rather than police our border, Homeland Security has decided to make policing Americans’ speech its top priority,” Sen. Josh Hawley tweeted. And it wasn’t just the typical culture warriors weighing in. Sen. Rob Portman of Ohio expressed concern about the United States “turning the tools that we have used to assist our allies counter foreign adversaries onto the American people.” Commentators and editorials pointed out the obvious parallels between the Disinformation Governance Board and the “Ministry of Truth” that controlled information in George Orwell’s 1984.

Mayorkas sought to clarify the intent behind the board in  interviews over the weekend. “Those criticisms are precisely the opposite of what this small working group within the Department of Homeland Security will do,” he told CNN’s Dana Bash on State of the Union, insisting the board won’t examine statements by U.S. citizens and is purely advisory, with no enforcement authority. But, he admitted, “we probably could have done a better job of communicating what it does and does not do.”

The cleanup effort continued Monday—nearly a week after Mayorkas’ initial comments—with the agency issuing a press release formally introducing the DGB, acknowledging the “confusion” around the announcement, and seeking to frame the body as merely an extension of work it’s been doing for a decade. “The Department identifies disinformation that threatens the homeland through publicly available sources, research conducted by academic and other institutions, and information shared by other federal agencies and partners,” it said. “DHS then shares factual information related to its mission to potentially impacted people and organizations.”

As examples, the agency pointed to its efforts to clear up confusion about the safety of drinking water following Hurricane Sandy and counter disinformation from cartels seeking to persuade migrants to cross the southern border illegally. And in yesterday’s briefing, White House Press Secretary Jen Psaki repeatedly stressed the initiative was a “continuation” of an effort started under the Trump administration. Then again, the Trump-era DHS characterized similar work as “building resilience to foreign interference and misinformation activities”—a slightly less fraught choice of words.

DHS still hasn’t communicated much about what the DGB will actually do on a day-to-day basis—Psaki told reporters Monday she didn’t “have a determination of what [its] format would look like at this time”—and in the absence of additional details, attention has shifted to Jankowicz herself, with myriad critics finding lots more than Mary Poppins lyrics to glom onto.

The 33-year-old former Wilson Center disinformation fellow and advisor to the Ukrainian government has studied Russian disinformation campaigns and online harassment—and has expressed a desire to restrict speech in an effort to crack down on both. “I shudder to think about if free speech absolutists were taking over more platforms, what that would look like for the marginalized communities all around the world,” she told NPR earlier this month. “We need the platforms to do more, and we frankly need law enforcement and our legislatures to do more as well.”

But Jankowicz hasn’t always proven to be a fount of reliable information herself. In early March 2020, she called on companies to stop advertising masks on articles about COVID-19, and in October of that year, cast doubt on intelligence officials’ warnings—since reaffirmed by Biden-era officials—that Iran engaged in a cyber-enabled influence campaign seeking to undermine Donald Trump’s reelection campaign. That same month, she also sought to discredit the Hunter Biden laptop story, going well beyond simply withholding judgment and instead telling the Associated Press it should be viewed as a “Trump campaign product.” Independent investigators have since authenticated that large portions—if not all—of the laptop’s contents were legitimate.

Partisans have dug up these old comments to dunk on Jankowicz as she starts her new role, noting that her errors all seem to run in the same direction. The larger takeaway from her slip-ups is that arriving at the truth is a process—an iterative one that relies on open dialogue and the free exchange of ideas. Every day, new information is discovered that renders existing “truths” obsolete.

For instance, the Department of Homeland Security learned this week that announcing something called the “Disinformation Governance Board” with little-to-no context was a poor decision. “There has been confusion about the working group, its role, and its activities,” it conceded yesterday. “The reaction to this working group has prompted DHS to assess what steps we should take to build the trust needed for the Department to be effective in this space.”

Ohio Goes to the Polls

We’re going to learn a lot about the future of the Republican Party in the next few months, with fiercely competitive primary races set to go before the voters in states across the country. First up: Ohio.

Harvest spent several days in the Buckeye State this spring, and, in a piece for the site today, provides an overview of the Republican U.S. Senate primary between author and venture capitalist J.D. Vance, former State Treasurer Josh Mandel, State Sen. Matt Dolan, businessman Mike Gibbons, and former Ohio GOP Chair Jane Timken. We’ll have more on the outcome of the election in tomorrow’s TMD.

Most of those candidates have spent the past year aggressively courting Donald Trump’s endorsement, but Vance won it last month. 

The payoff was soon evident, as an April 26 Fox News survey showed Vance’s support doubling from the month prior, and has him now leading the field at 23 percent. But Vance’s lead in the poll didn’t exceed the survey’s margin of error, and the largest block of primary voters—25 percent—said they remained undecided. Half who had landed on a pick said they could see their mind changing.

Still, Vance’s narrow lead appears to have held, according to two polls released yesterday, on the eve of the primary. An Emerson poll conducted last Thursday and Friday showed a tight race, with Vance ahead at 24 percent, Mandel at 22 percent, and Dolan at 18 percent. And in a Trafalgar survey conducted over the weekend, Vance was at 26 percent compared to Dolan’s 22 percent and Mandel’s 21 percent. 

“Trump’s endorsement was a game changer for Vance: 63% of his supporters say the former president’s endorsement makes them more likely to support his candidacy,” Spencer Kimball, executive director of Emerson College Polling, said. “Among those who say Trump’s endorsement makes them less likely to support a candidate, Dolan holds the majority, 56%, of support.”

In a matter of hours, just how much the Trump effect will help—or hurt—in the Senate primary will become even clearer.

“It appears the Trump endorsement helped Dolan, and it also helped Vance,” Chris Joseph, chairman of the Lucas County Republican Party, told The Dispatch. 

Even with the primary just days away, and despite Vance’s rise in the polls, longtime political watchers in the Buckeye state were reluctant to predict who would secure the nomination. “Who knows? No one knows,” Joseph said. “No one knows.”

Worth Your Time

• For more on the Biden administration’s Disinformation Governance Board, check out Jack Shafer’s latest Politico column. “If Russian disinformation is a problem, it has been so for almost a century,” he writes. “Two years after the surrender of Nazi Germany, Soviet leadership sought to influence public opinion by covertly funding newspapers and radio stations around the world and establishing fronts to nurture communism. It forged documents and attempted to plant them in credible publications. In one disinformation campaign, it promulgated the tall tale that AIDS was the product of an American biological weapons experimentation. And so on. Somehow we survived the Soviet onslaught without a Disinformation Governance Board to guide us. Not every particle of disinformation can be blocked. Anybody who is good at inventing lies can produce disinformation faster than anybody can shoot disinformation down. Instead of installing a Truth Politburo at DHS, the government should leave the job of policing disinformation to media outlets, which compete “‘to obtain the earliest and most correct intelligence of the time, and instantly, by disclosing them to make them the common property of the nation,’ as Times of London editor J. T. Delane put it in 1852.”

• Comedy writer Jeff Maurer’s Monday newsletter gets at the absurdity of Democratic efforts to wipe out all or most student loans—from a progressive perspective. “This puts progressives in the awkward position of advocating a policy that mostly benefits highly educated, upwardly mobile, and, yes, mostly white people,” he notes. “It is also possible that somebody—or even literally everybody—noticed that progressives tend to be highly educated, upwardly mobile, and, yes, mostly white. Must be a coincidence! Given this context, of course progressives are desperate to muddle the debate. Their staunch resistance to any caps or means testing—which would be inelegant but would help target relief to the poor and middle class—makes it completely obvious that the real end game is to hand a big pile of cash to the type of person who votes for Bernie Sanders and Elizabeth Warren. That’s a pretty bad look, so it makes sense that their main tactic is to basically throw a smoke bomb on the ground and hope that people get confused. This tactic will probably succeed in giving progressives the psychological cover they need to convince themselves that they’re a champion for the poor while they carry water for the rich, but that doesn’t mean that the rest of us need to be fooled.”

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Toeing the Company Line

• Monday’s episode of Advisory Opinions is jam-packed with Supreme Court wonkery, as David and Sarah discuss the fate of Trump’s Migrant Protection Protocols, yet another win for the First Amendment, and a football coach’s prayers before moving on to analyze a strange qualified immunity case, the prospect of Florida’s social media censorship bill, and Sarah’s tales from the White House Correspondents’ Dinner. And a bonus: In light of the news about the Supreme Court last night, David and Sarah will be out with another episode later today, taking a comprehensive look at Alito’s draft opinion and its meaning, along with a discussion of the leak and consequences for the court.

• In light of reports that Sweden and Finland plan to apply for NATO membership, Arthur Herman explains the benefits their membership would bring both to NATO itself and the Arctic region. And John Hannah, who advised former Vice President Dick Cheney on national security, details the international consequences of Russia’s nuclear blackmail, which has kept the West from direct military involvement in Ukraine.

Let Us Know

What theory of the Supreme Court leak makes the most sense to you? Do you think it will have its intended effect?