The draft opinion, if it holds, would be the culmination of half a century of legal conservatives organizing around the idea that Roe was wrongly decided and needed to be reversed. | Anna Johnson/AP Photo
IN HIS OWN WORDS: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
Thus begins Justice SAMUEL ALITO’s February draft opinion that would end the constitutional right to an abortion in America, obtained exclusively by POLITICO’s Josh Gerstein and Alexander Ward.
We knew this was coming. Ever since last December’s oral arguments in the Mississippi abortion case, it seemed likely that there was a majority on the court to overrule Roe and Casey.
But while not a surprise, it was still shocking to see Alito’s words in black and white. The draft opinion, if it holds, would be the culmination of half a century of legal conservatives organizing around the idea that Roe was wrongly decided and needed to be reversed.
They have, above all else, three people to thank:(1) President GEORGE W. BUSH, who appointed Alito; (2) then-Senate Majority Leader MITCH MCCONNELL, who blocked President BARACK OBAMA from filling a Supreme Court vacancy; and (3) President DONALD TRUMP, who appointed three conservative justices, all of whom seem prepared to back some version of the Alito opinion.
They can also thank two unusual features of the American system:(1) a Senate in which McConnell was able to gain control without Senate Republicans representing a majority of Americans, and (2) an Electoral College system in which both Bush and Trump became president despite losing the popular vote.
In his draft opinion, Alito anticipated a fierce political backlash coming, and offered a preemptive response: “We cannot allow our decisions to be affected by any extraneous influences, such as concern about the public’s reaction to our work.”
THE BREACH — For those who watched oral arguments and followed the case closely, more shocking than the substance of Alito’s draft opinion was the extraordinarily rare publication of the draft text. We would say this even if Josh and Alex weren’t our colleagues: this ranks as one of the biggest journalistic scoops of this generation.
THE ROOTS OF ROBERTS VS. ALITO — CNN last night provided additional confirmation that Chief Justice JOHN ROBERTS was unlikely to join Alito and the four other conservatives — CLARENCE THOMAS, NEIL GORSUCH, BRETT KAVANAUGH and AMY CONEY BARRETT — on any final anti-Roe opinion.
The divide between the two Bush appointees goes back to their confirmation hearings, when they each tackled the question of Roe in different ways. In 2005, Roberts emphasized that Roe was “settled law.” The following year, Alito conspicuously noted that stare decisis, the legal term of art for respecting precedent, was not an “inexorable command.” At the time, it was noted that Alito was echoing former Chief Justice WILLIAM REHNQUIST’s use of the same phrase in his 1992 dissent in Casey, calling for the overturning of Roe.
Thirty years later, Alito, now leading a conservative majority, used the Rehnquist dissent as a blueprint. Adherence to stare decisis “is the norm but not an inexorable command,” he wrote in a key passage.
PRESSURE ON CONGRESS — Sen. BERNIE SANDERS (I-Vt.) was one of the first out of the gate with a demand that Democrats use their congressional majorities to codify Roe into law — and “end the filibuster” if necessary.
The only problem with that: there may not be 50 votes for it in the Senate.
Burgess Everett: “There is really no scenario where the 50-50 Senate gets rid of the filibuster for abortion legislation this year. [Sen. JOE] MANCHIN is anti-abortion rights, and [Sens. SUSAN] COLLINS + [LISA] MURKOWSKI wouldn’t vote to change the Senate rules under a Democratic majority.”
ALL EYES ON COLLINS — The Supreme Court seems poised to do what Collins assured her abortion-rights supporting Maine constituents that it would never do when she voted to confirm Kavanaugh. Here she is in 2018:
Reporter: Why do you think Kavanaugh would not repeal or overturn Roe v. Wade?Collins: “Because he has agreed that the concept of precedent is rooted in Article Ill of the Constitution. And he clearly reveres our Constitution. He also believes that it is not sufficient — since I asked him this directly — for five sitting judges to believe that an earlier decision was incorrectly decided.”
In his 98-page draft opinion, Alito blasted through each of those arguments about precedent. And Kavanaugh apparently agrees with him.
The Senate is in session, so expect Collins to be chased around by reporters all week questioning her judgment about what Kavanaugh would do on Roe, and whether it could change her view of going nuclear on the filibuster.
IS IT ONLY ABOUT ROE? — Since December’s oral arguments, Roe’s defenders have said that the legal logic behind dismantling Roe could easily apply to other Supreme Court opinions that rest on protecting “fundamental rights” that are not specifically enumerated in the Constitution, and specifically opinions more recent than Casey dealing with same-sex marriage, anti-sodomy laws and civil rights.
Alito takes pains to knock down this idea: “[T]o ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
That, of course, is rarely how it works. Successful legal arguments get borrowed and expanded, and the opinion-writer’s buried disclaimer gets forgotten.
Politically, this will be a potent rallying cry for Democrats: It won’t end with abortion. Next will be contraception and gay marriage. (AOC is already there.)
Reaction on the left:
Senate Majority Leader CHUCK SCHUMER and House Speaker NANCY PELOSI in a joint statement: “Every Republican Senator who supported Senator McConnell and voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people.”Sen. PATTY MURRAY (D-Wash.): “If this is true, women will be forced to remain pregnant when they don’t want to be. Extreme politicians will control patients’ most personal decisions. And extreme Republicans will have eliminated a fundamental right an entire generation of women have known their whole lives.”
Reaction on the right:
Sen. MIKE LEE (R-Utah): “Deliberation and the maintenance of decorum and confidentiality are vital to the free operation of justices and the judicial system. To violate an understanding that has held for the entire modern history of the Court — seeking to place outside political pressure on the Court and the justices themselves — is dangerous, despicable and damaging.”Rep. MARJORIE TAYLOR GREENE (R-Ga.): “This is the best news of our lifetime. … This is a great victory. This is a great victory for God.”Sen. TED CRUZ (R-Texas): “This is nothing short of a massive victory for life and will save the lives of millions of innocent babies.”
Good Tuesday morning. Thanks for reading Playbook. Drop us a line: Rachael Bade, Eugene Daniels, Ryan Lizza.
Amazon’s paid leave policy gives hourly employees like Elizabeth up to 20 weeks of fully paid time to be with their new babies. “He’s only going to be really little once,” she said. “Spending that extra time with him just meant so much to me.”
OHIO PRIMARY DAY — Today, voters in the Buckeye State will go to the polls in 2022’s first major test of Trump’s hold on the GOP primary electorate. Here’s what you should know:
“But the closing days of the race have also seen state Sen. MATT DOLAN and former state Treasurer JOSH MANDEL claim some signs of ticking up, and the result sets up as a major test of Trump’s influence in the party.” Also in the hunt, though running behind the top of the pack, is MIKE GIBBONS, a self-funding businessman, and JANE TIMKEN, the former chair of the Ohio GOP. The $65+ million race is the most expensive primary in Ohio history, per the Statehouse News Bureau.
How will it play out? “Trump’s big entrance into the Ohio Senate primary seems to have boosted two candidates, then: Vance, the candidate he endorsed — and Dolan, the candidate who has gone out of his way to distance himself from Trump,” writes Natalie Allison. Still, a “Mandel win is certainly not out of the question.”One House race we’ll be watching: The rematch between NINA TURNER and sitting Dem Rep. SHONTEL BROWN. Brown defeated Turner in a special election last year, despite national progressives pouring substantial resources into Turner’s campaign. This time, the fault lines are much the same: Brown has the backing of Biden and House Majority Whip JIM CLYBURN, while Turner won the 11th-hour endorsement of AOC (D-N.Y.) on Monday.Ohio’s polls close at 7:30 p.m. EDT.
Up to 20 weeks of paid leave gave Amazon employee Elizabeth extra time with her son, without missing her paycheck.
— 10:30 a.m.: The president will leave the White House for Montgomery, Ala., arriving at 11:55 a.m.
— 1:10 p.m.: Biden will visit a Lockheed Martin facility that makes Javelin anti-tank missiles and other weapon systems in Troy, Ala., where he’ll speak about military aid to Ukraine at 2 p.m.
— 4:15 p.m.: Biden will leave Montgomery, arriving back at the White House at 7:35 p.m.
VP KAMALA HARRIS’ TUESDAY:
— 7 p.m.: The vice president will deliver remarks at the 30th Annual We Are Emily National Conference and Gala.
Press secretary JEN PSAKI will gaggle on Air Force One on the way to Alabama.
THE SENATE will meet at 10 a.m. to take up JOSHUA FROST’s nomination as assistant Treasury secretary for financial markets. At 11:45 a.m., the Senate will vote on cloture for ELIZABETH DE LEON BHARGAVA’s nomination as an assistant HUD secretary. Confirmation votes will come at 2:15 p.m., after a recess from 12:30 p.m. for weekly conference meetings. Transportation Secretary PETE BUTTIGIEG will testify before the Commerce Committee at 10 a.m. Testifying before Appropriations subcommittees today: NASA Administrator BILL NELSON at 10 a.m., Defense Secretary LLOYD AUSTIN at 10 a.m. and IRS Commissioner CHARLES RETTIG at 2:30 p.m.
THE HOUSE is out.
PHOTO OF THE DAY
A young girl attends an Eid al-Fitr reception at the East Room of the White House on Monday in Washington, DC. | Alex Wong/Getty Images
HOGAN TO TAKE ON TRUMP AT REAGAN LIBRARY — Alex Isenstadt writes in: Maryland Gov. LARRY HOGAN is set to give a speech at the Ronald Reagan Presidential Library on Tuesday evening in which he’ll deliver a stark warning to the Republican Party: Trump can’t win in 2024.
“We won’t win back the White House by nominating Donald Trump or a cheap impersonation of him,” Hogan will say in the speech, according to advance excerpts provided to POLITICO. “The definition of insanity is doing the same thing over and over again and expecting a different result.”
Without naming names, Hogan adds: “We don’t need just another typical professional politician who bends with every political wind and stands for nothing.”
Hogan is the latest in a string of would-be 2024 Republican candidates to speak at the Reagan Library. He has been the most aggressive of any potential contender in staking out an anti-Trump platform. He is also expected to say that “a party that lost the popular vote in seven out of the last eight presidential elections and that couldn’t even beat Joe Biden, is desperately in need of a course correction.”
INFLATION DOOMS DEMS WITH HISPANIC VOTERS — Reuters’ Tim Reid and Brad Brooks spoke with 35 Hispanic voters in two swing House districts — one in Arizona, and one in Colorado. Twenty of them “said soaring inflation is causing them to seriously consider voting for Republicans. The majority of those said they usually vote Democrat.”
PENNY FOR YOUR THOUGHTS — Former NYC Mayor BILL DE BLASIO is out with a piece this morning in The Atlantic offering advice to Biden and sharing his own 30,000-foot view of the Democratic Party. Memorable line: “When it comes to being unpopular, I’m unfortunately somewhat of an expert.”
FORMER PENCE AIDE SIGNS WITH KEMP — Here’s an interesting transition: MARC SHORT, who served as COS to former VP MIKE PENCE, is hopping aboard the campaign of Georgia GOP Gov. BRIAN KEMP, per Axios’ Emma Hurt and Jonathan Swan. Kemp, of course, is a top enemy of Trump, who has endorsed his GOP challenger, former Sen. DAVID PERDUE, in the May 24 primary.
— Meanwhile, David Siders scoops: “George W. Bush to appear at fundraiser for Trump nemesis Kemp”
Amazon’s parental leave policy allowed Elizabeth to be there for the little things.
JAN. 6 AND ITS AFTERMATH
WHO’S TALKING — In interviews with the House Jan. 6 Committee, IVANKA TRUMP “has proven useful in confirming other key testimony about the state of play inside the White House as well as then-President Donald Trump’s state of mind that day,” CNN’s Gloria Borger, Ashley Semler and Gabby Orr report.
WHO’S NOT — “3 pro-Trump GOP lawmakers reject Jan. 6 committee’s requests for testimony,” by Nicholas Wu and Betsy Woodruff Swan
FED UP — “After its latest rate-setting meeting ends Wednesday, the Fed will almost certainly announce that it’s raising its benchmark short-term interest rate by a half-percentage point — the sharpest rate hike since 2000,” AP’s Christopher Rugaber reports.
WAR IN UKRAINE
— “Moscow is preparing to annex vast new swaths of Ukrainian territory in coming days, the United States said on Monday, potentially moving to cement control of much of the country’s east,” WaPo’s Missy Ryan, John Hudson, Louisa Loveluck and David Stern report.
— The arms race: “Push to arm Ukraine putting strain on U.S. weapons stockpile,” by AP’s Ben Fox, Aamer Madhani, Jay Reeves and Dan Huff
Cole Emhoff, the son of Doug Emhoff and stepson of Kamala Harris, got engaged to his longtime girlfriend, Greenley Littlejohn, reports CBS.
SPOTTED: Former President Bill Clinton browsing the books at Capitol File News at Terminal C at Reagan. … Chef José Andrés at the White House on Monday meeting with homeland security adviser Liz Sherwood-Randall about providing food aid to Ukraine.
OUT AND ABOUT — Stuart Holliday received the Légion d’Honneur in a decoration ceremony at French Ambassador Philippe Etienne’s residence on Monday evening. SPOTTED: Gwen Holliday, Sen. Bill Hagerty (R-Tenn.) and Chrissy Hagerty, Ed and Marie Royce, Ann Stock,Charles Rivkin, Lee Satterfield and Patrick Steel, Steven Quamme, Tracy Bernstein, Natalie Jones and Puru Trivedi.
MEDIA MOVES — NPR’s Washington desk is adding Ximena Bustillo as a multi-platform general assignment reporter and Ashley Lopez to cover voting and voters from Austin. Bustillo most recently was a food and agriculture policy reporter at POLITICO. Lopez has been a politics and health reporter at KUT. … Victoria Benning is joining Bloomberg as managing editor for the national team. She previously was deputy America editor at WaPo.
TRANSITIONS — Eliza McCoy is joining the American Hotel & Lodging Foundation as VP of awareness and prevention programs. She previously was executive director at the National Center for Missing & Exploited Children. … Amba Datta is now a government contracts partner at Steptoe & Johnson. She previously was special counsel at Kelley Drye. … Mia Palmieri Heck is now director for federal health policy at Change Healthcare. She most recently was VP of external affairs and health care policy fellow at the Joseph Rainey Center for Public Policy, and is a Trump HHS and CMS alum. …
… Max Burns is now an on-camera political contributor for The Young Turks/Rebel HQ. He’s founder and chief strategist at Third Degree Strategies and a national political columnist for NBC News Think and The Daily Beast. … Monica Matoush is joining Invariant. She previously was senior adviser to the undersecretary of Defense for personnel and readiness, and is a House Armed Services alum. … Erik Peterson is now a senior manager for public policy at CrowdStrike. He most recently was a senior professional staff member for ranking member John Katko (R-N.Y.) at the House Homeland Security Cybersecurity Subcommittee.
ENGAGED — Zach Eisenstein, comms manager at the Trevor Project, proposed to Sean Cummings, associate director of membership and major gifts at the American Repertory Theater at Harvard University, on Saturday. The two met doing forensics (competitive speech) in high school, where they were then both recruited to compete at the collegiate level at George Mason. Pic
WEEKEND WEDDING — Daniel Barash, a VP at SKDK and a Michael Bennet and DCCC alum, and Kelsey Mellette, a special assistant in HHS’ office of the assistant secretary for the legislation and a Kamala Harris alum, got married in Colonial Williamsburg in a small, intimate ceremony with friends and family this weekend. The wedding included Revolutionary War-inspired fife and drum leading guests from the ceremony to the reception, and appearances by reenactors of George and Betsy Washington. Pic
— Elizabeth Butler, deputy finance director at No Labels, and Christopher Eddowes, manager of government affairs at Atlas Crossing, got married on Saturday in Washington, D.C., surrounded by friends and family. The two met when they were both working in Rep. Lloyd Smucker’s (R-Pa.) office. Pic
HAPPY BIRTHDAY: Sens. Jim Risch (R-Idaho) and Ron Wyden (D-Ore.) … NBC/MSNBC’s Willie Geist … national climate adviser Gina McCarthy … Caroline Critchfield Hunter of Stand Together … Ben Ginsberg … Scott Kamins of Kamins Consulting … Harris Media’s Vince Harris … former Sen. David Vitter (R-La.) … POLITICO’s Matt Friedman, Anna Stubbs and David Nicks … Julia Busby … Chip Rogers of the American Hotel and Lodging Association … Alex Loehr … SKDKnickerbocker’s Stephen Krupin …. Greg Clugston … Linda Kenyon … Vic Goetz of Sen. Jeanne Shaheen’s (D-N.H.) office … Stephanie Logan … NBC’s Stephen Labaton … Andy Miga … Democratic strategist Max Burns (35) … Seth Flaxman of Democracy Works … Chris Bodenner … Andrew Nagorski … App Association’s Chelsea Thomas … Ella Yates … Julia Convertini … Lindsey Kolb … Caitlin Peruccio … Sam Azzarelli of Firehouse Strategies … Tim Mulvey … Paul Kangas … Steele Burrow … Jason Killian Meath … Solvay’s Michael Blume … Charter’s Catherine Bohigian
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Amazon created the Ramp Back program to help hourly employees like Elizabeth through the challenge of coming back to work after a new baby. The program lets parents ease back to work with flexible time and part-time options.
For Elizabeth, Ramp Back is just a part of why she chose—and keeps choosing—to build her career at Amazon. “I came for the benefits, but I stayed for the growth.”