Late Monday, Politico published a draft opinion written by Justice Samuel Alito in Dobbs v. Jackson’s Women’s Health Organization, indicating that the court had enough votes to abolish the Constitutional right to an abortion (A final decision in Dobbs is expected in June). The document was authenticated by the Chief Justice the next day. The leaked opinion, which takes up some of the most radical rhetoric of the anti-abortion movement and opens the door to a nationwide abortion ban, was met with outrage, or celebration and shock from people across the political spectrum. Court-watchers have warned for years of the impending demise of Roe v. Wade in light of the far-right capture of the court. But the leak also raised new concerns about the wide ranging implications of the Supreme Court’s radical tilt.

On a special episode of Amicus this week, Slate’s senior writer and legal analyst, Mark Joseph Stern discusses the events that have led to this moment and what the opinion could mean for the future of a handful of fundamental civil rights related to the landmark 1973 ruling. Our conversation has been condensed and edited for clarity.

Dahlia Lithwick: Before we even start, Mark, I believe the day Anthony Kennedy stepped down, but certainly the day Brett Kavanaugh was confirmed, you wrote about how this was going to happen. Many people said “ no, no, no, there’s plenty of time! Chief justice John Roberts, incrementalist! Brett Kavanaugh, moderate! Amy Coney Barrett, solicitous of all comers and a big-open-minded-non-radical human!”

In the face of all that, I think you have been saying, this is what’s coming and now it has happened. And I’m really thunderstruck at the number of people who are shocked, shocked. I’m so surprised, which is met in equal measure by the people who are like, well, I’m not surprised at all.

Mark Joseph Stern: When Brett Kavanaugh joined the court in 2018, I did make a prediction about this that turned out to be wrong. And my prediction was that the court would take an incrementalist approach to rolling back Roe v. Wade. And that the court would take a series of cases that examined these various laws coming out of Republican-led states that either moved back the line like this one, actually, which is a 15- week ban or that outlaw abortion for some specific reason like race, sex or disability, or some restriction on how abortion clinics are run and use those decisions to ship away at the basis of Roe until finally, it could just say, all right, look, we’ve already killed Roe.

We’re just going to admit now that it is overturned and that’s not what happened. And I think the reason why it’s just three words: Amy Coney Barrett. As soon as Barrett joined the court, the calculus fundamentally shifted because there were five justices who clearly despised Roe, who no longer had to rely on chief justice John Roberts, and his somewhat more cautious and institutionalist, incrementalism and could go whole hog.

Mark: And when those justices agreed to take up this case, it seemed like the handwriting was on the wall from then on. And especially after oral arguments, it was clear that there were five votes to just do away with Roe all at once, altogether, right now, rather than drag out the process and force the court to go through years of suffering. There are five and we now know there are clearly five who just really want to get this over with and abolish the constitutional right to abortion once and for all.

Dahlia: So Mark, as I intimated up top, I don’t want to spend a lot of time on the “who done it” because I do think it’s a real distraction, but you’ve just given voice to the sense of anarchy, that there’s no rules anymore and the majority is signaling that we are going to get the outcome we want and we don’t care. And I want to link it up to the opinion itself. You wrote about this on Monday night, but in a weird way, the opinion feels like it’s written by arsonists.

I think so much of the norm of care and solicitude about the justices who came before is gone, respect for the people who crafted Planned Parenthood v. Casey, that is deeply ingrained, such that you just don’t write an opinion saying, man, Roe was a shoddy piece of drafting. Man, Casey was a capitulation that was predicated on nothing.

One of the things that’s striking to me beyond the doctrinal shift, which we’ll get to in a second, is this tonal shift, this full on Tucker Carlson, Rush Limbaugh, name calling. We’re talking about “abortionists” now and “eugenics” and Clarence Thomas’s pet theory about why abortion rights were deployed to harm black women and their babies. I guess I just feel like the tonal shift inside the opinion is almost as striking as the norm shift you are describing within the court itself.

Mark: And here is the part where we have to say, I think, that this is a draft opinion and that it was circulated apparently on February 10th, right? And the way this works in the court is that the author of the majority opinion will write it and then circulate it to the other justices. Some of them will join. Some of them will begin their dissents or concurrences.

And so I think that what we’re seeing here is pure unadulterated Alitoism. We are seeing what this opinion would have looked like if he had simply hit save on the document and then uploaded it directly to the Supreme Court’s website when he was done, rather than receiving input from justices, like Kavanaugh and Barrett, who might have suggested toning down certain sections, bringing them in line with a few compromises, even if they’re not substantive and just tonal. And I actually think there’s a possibility that Alito may have swung for the fences as a tactical way to ensure that there would still be some snark and scorn in the final product.

I think it’s quite possible though, that Alito said, well, Brett and Amy are going to make me tone down some of this stuff, but I’ll put as much of it in as possible to make it more difficult for them to eliminate all of it. I will go all the way to fury mode and just deride Harry Blackmun as a partisan hack and a baby killer. I’ll just write off Anthony Kennedy as a pretentious doof, who had no idea what he was doing. I will completely disclaim these past justices, these past decisions, and hope that Brett and Amy don’t make me walk it back too much.

And that tone – whether it ends up in the final opinion or not – it is shocking, I think, for us to see, because when Alito does pure Alitoism, it’s usually in a dissent or concurrence or he’s writing for himself or maybe himself and Clarence Thomas. And this is ostensibly speaking for the majority of the court. And I just think it’s eye popping and incredibly unusual for us to read an Alito opinion, labeled opinion of the court that is so nasty and acidic and vile and disrespectful because it just has never happened in the past.

Dahlia: I felt after Dobbs folks like you and I said, when we listened to the oral argument, that the more you heard the justices trying to assuage us that none of these other “unenumerated rights” cases are on the table, the more it felt like these other cases are on the table.

And I just want to talk for a minute because it’s clear Justice Alito wants to cabin this, and say it’s just Roe we’re talking about. But I do think once you pull out that piece at the bottom that says, there’s no such thing, really as any unenumerated rights that were not seen as fundamental to liberty at the time of the founding, then everything falls, right?

It’s just really hard to see, as you’ve said, how Griswold survives, how Loving v. Virginia, the interracial marriage case survives or Lawrence v. Texas, and Obergefell.

All those by necessity are now built on sand. And I’m hearing two different things: One is, “You’re hysterical because now having warned us for years that Roe v. Wade is about to be overturned. Oh, and by the way you were right, but all this other bad stuff isn’t going to happen, right?”

There feels like a kind of persistent, I guess sense that we’d rather remain frogs boiling in this pot for a little bit longer. And then I guess the other thing I’m hearing is, “No, there’s a principled difference between abortion and all of the other progeny of Pierce and Myers and the cases that establish the liberty interests that are embodied in the 14th Amendment.” Substantive due process is meaningful and a profoundly important answer to chattel slavery and it’s an answer to what do we do when we are trying to write a 14th Amendment that confers upon former slaves, all of the freedoms that they didnt have, and it is the freedom to marry your partner. It is the freedom to raise your own children. It is the freedom to determine how many children you will have and how you will raise them. Those are not meaningless penumbras and emanations.

That’s a substantial, I think, building block of freedom, but I guess I’m curious if you can see some principle here that allows Justice Alito to say, “Oh no, no Obergefell is safe and don’t worry about your birth control. Abortion is just different.”

You flick at in your piece that abortion just different, because it’s taking a life.

Mark: Yes. And that’s what Alito lays out in his opinion. He says that abortion is sharply distinguished from other rights that were recognized in previous cases on which Roe relied because it destroys a potential life or an unborn human being. And so abortion is just sui generis because it involves basically what we view to be killing. And so we are not going to allow it to stand as precedent, but we’ll simply pluck it out of this entire line of precedent and let the rest stand.

And there are a few problems with that as we’ve already discussed, there are other precedents that have very similar reasoning, that are not “deeply rooted” that seem to be imperiled, but he actually does this kind of rhetorical trick to make it seem like he’s saying that the gay rights cases are safe, but then not actually say that at all.

So he has this passage where he’s talking about other decisions that created or established unenumerated rights that are different from abortion, but that he says are safe and that the abortion decisions relied on, but that he’s not overturning. And those are cases like Loving, which we’ve discussed, or the right to use contraceptives, or the right to be free from sterilization, and rights around raising children. So he has that section and he basically says, these are okay. We’re not going to overturn them.

Whether you believe him or not, that’s a whole other issue. But then he has a turn and he says, “Oh, by the way, there were also these cases that came after Roe, that came after Casey, that are more recent cases, that rely on a similar sense of individual autonomy that the court has to define.” And those cases are Lawrence v. Texas and Obergefell v. Hodges. So the sodomy decision and the same-sex marriage decision, basically, granting equal rights to gay people.

And he doesn’t put those cases in the list of precedents that are safe. Instead he mocks them and he says that they relied on this broad and hazy reasoning of individual autonomy, which taken to its logical extreme would create a fundamental right to illegal drug use and prostitution. And so that cannot be correct.

So you can pluck out a few sentences of this opinion and make it sound like everything else is safe. But if you read these pages really closely and again, they’re subject to change, and who knows what’ll happen. But right now it sounds like some of those precedents are maybe safe, if you take Alito on his word and some of them are definitely not because they are placed in the exact same bucket as the right to abortion, which this entire decision is overturning.

I take very little solace in these couple of lines that people are fixating on. And there have been those who claim that I am overreacting, I guess time will tell. But I was also told that I was overreacting when I said the Supreme Court was going to overturn Roe and here we are.