This is the Cato Daily Podcast for Tuesday, May 3rd, 2022. I'm Caleb Brown.

It's being called a betrayal, an extreme breach of Supreme Court protocol, a leaked draft opinion on perhaps the most polarizing

issue the court confronts abortion.

Cato's Walter Olson discusses what draft opinions are, what we can learn from this one, and what changes for the court now that it is leaked.

There is the substance and there is the court norm issue about leaks from the court and I'm going to hold the substance at a distance

there'll be a lot to talk about on that and more to talk about when the decision is actually final because all we've seen right now is an early draft.

The whole community that follows the court was astonished that a whole draft of a majority opinion would leak out at this stage.

That is not something that has happened.

The court has certainly had leaks.

The leaks have sometimes suggested where the court is coming out on the pending case.

Much more often, leaks happen after cases are decided and we find out like who is our grin against whom.

But this kind of leak is unprecedented as far as the importance of the case, the leak of an entire document of the

the speculation that it of course has inevitably unleashed

as to who might have leaked and why they might have leaked it.

All right, so we should understand what a draft opinion is.

It is something that is passed between justices among clerks in discussions to try to get to either a majority or get to some sort of agreement

that a majority can live with, even if temporarily on some issue of importance.

Especially on the most prominent case of the year, the most high profile case potentially in years, a

draft by the justice who expects to write the opinion is kind of an opening bid and

as with opening bids in a card game, it doesn't necessarily tell you where it's going to wind up.

What happened before this draft was the justice met in a preliminary meeting to see which side had the majority.

At that point, they can proceed to assign the first draft to a judge on the majority side.

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