Roe will fall, but the Supreme Court’s legitimacy is already lost.

The draft opinion leaked to and published by Politico tonight suggests that if the Supreme Court strikes down abortion rights, it will be a huge blow to the legitimacy of the court. Every court watcher who spoke in terms of baby steps, incrementalism, orchipping away at one of the most important precedents in modern history will have been wrong. Those who thought the court wouldn't do something like that just before the elections will be wrong. The people who assured us that the two people on the court were moderate centrists cared a lot about the appearance of a nonideological court. They will have been wrong as well.

If this draft opinion becomes a precedent of the court, it will be catastrophic for women, particularly for women in the states that will immediately make abortion illegal, and for women who can't afford it. The court's lack of regard for its own legitimacy is exceeded only by its disregard for the real consequences for pregnant women who are 14 times more likely to die in childbirth than from abortion. The law in Mississippi has no exception for rape or incest. There will be a raft of bans that give rights to fathers, including sexual attackers, and punish women who miscarry or do harm to their fetus. The days of pretending that women's health and safety were of paramount concern are over.

According to polling, the American public may turn its shock into political anger. According to CNN polling from January, only 30 percent of Americans want the court to overturn Wade, and 52 percent want their state to become a safe haven for women seeking abortion. Thirty-five percent said they would be angry if the ruling was overturned, compared with 14 percent who said they would be happy.

Justice Sam Alito wants America to know he doesn't care about voters. Even if we knew what would happen, we wouldn't have the authority to make a decision.

Whoever leaked the opinion cared a lot about the political implications of the decision. It is one of the most brazenly political acts to ever come out of the court. The most emphatic confirmation that there are no rules left at an institution that is supposed to be the one making the rules, but is instead currently under unprecedented public scrutiny for its very absence of binding rules is. The Supreme Court blames journalists for its sinking polling numbers and refuses to be bound by ethics rules, but it doesn't answer to politics. It produces politics.

In addition to Alito's mockery of the authors of the two seminal abortion cases, anyone who believed the court would pretend to have any was wrong. This draft opinion is Exhibit A for anyone who believed that time or history or respect for their colleagues or the justices who came before them would moderate the five justices in this current majority. When the Texas S.B. 8 law banning abortion after six weeks was decided on the shadow docket in September, we knew it was a done deal. When we watched the arguments, we knew it. We have just had trouble catching up.

It is hard to keep this in perspective tonight, in light of the shattering ruling, but there are real and enduring consequences to the fact that the draft opinion was leaked. There are consequences to the fact that four of the other Republican-appointed justices had voted. The implications for trust and confidence in secret proceedings for the justices are stunning. The leaks from the court around Justice Neil Gorsuch declining to wear a mask at oral arguments this winter were a dry run for today. The Real Housewives of 1 First Street antics are no longer being kept out of the justices' sight.

The court will suffer for this self-destructive behavior. The rule of law and the public will suffer. The justices who wrote the plurality opinion knew what would happen to the court if it disrespected the American public, the Constitution, and itself. It's coming next in terms of personal autonomy and liberty, for the right to contraception, and so on. Be afraid for the independence of the judiciary. No matter what happens next, that is already lost.

You can listen to this recent episode of Amicus for more of the legal analysis by Dahlia Lithwick.