First, we really have no idea how close this draft will be to the final published decision. We should remember that Chief Justice John Roberts initially voted with conservatives to overturn the Affordable Care Act in NFIB v. Sebelius. In fact, what became the minority opinion was first drafted as the majority opinion. Roberts only caved to political pressure and switched his vote in May 2012. It is entirely possible a justice who voted with conservatives in January will get cold feet and switch his or her vote.
Second, we have no idea who leaked it. Many conservatives believe a liberal clerk leaked the draft either to intimidate conservative justices into switching or to undermine the legitimacy of the court, which is a long-term goal of the Democratic Party. But it is also, if not equally, possible that a conservative clerk leaked the draft in an effort to lock in a wayward conservative justice.
Third, if the final decision in Dobbs does follow the leaked Alito draft, it would be a huge restoration of faith in the conservative legal establishment. People outside of conservative legal thinking underestimate the immense damage Justice Neil Gorusch’s perverted textualism in Bostock did to the reputation of institutions that vouched for Gorsuch such as the Federalist Society. If Gorsuch betrayed the conservative legal establishment again, siding with Roberts to preserve Roe, it would accelerate a major rethinking of how conservatives should approach the judiciary.
