WASHINGTON — The sources have reasons, and the leaked draft opinion that overturned Roe v. Wade poses a question as old as the Roman Empire. What bonus? Who benefits?
Not the Supreme Court as an institution. His reputation was in decline even before the extraordinary breach of his confidentiality rules, with much of the nation convinced that he differs little from the political branches of government. The internal disorder suggested by the leak, totally at odds with the decorum prized by Chief Justice John G. Roberts Jr., was a blow to the court’s legitimacy.
Relations between judges, too, on evidence of cross-examinations in arguments and statements in opinions, have become tense and icy. “Will this institution survive the stench this creates in the public perception that the Constitution and its reading are just political acts?” Judge Sonia Sotomayor asked when Roe’s challenge was argued in December, as it became clear that five judges were ready to overturn the decision.
The fact of the fugue cannot be separated from its substance. Only a move as extraordinary as the removal of a constitutional right in place for half a century could transform the court into an institution like any other in Washington, where rival factions spill secrets in hopes of gaining an advantage.
“Until now, such a leak would have been unthinkable,” said Peter G. Verniero, a former New Jersey Supreme Court justice. “The protocol of our highest court has been seriously broken. The leak itself reflects another sad step towards presenting the court as a political body, which, whatever its preferred jurisprudence, is highly unhealthy for the rule of law.”
The court suffered collateral damage in March, when it emerged that Virginia Thomas, the wife of Judge Clarence Thomas, had sent inflammatory text messages to the Trump White House in the weeks before the Jan. 6 attack and that Judge Thomas had not he had only not disqualified himself from a related case, but also cast the only dissenting vote.
The damage from the leak was more direct, raising questions about whether the court is capable of operating in an orderly manner.
Understanding the challenge of Roe v. Wade
The upcoming Supreme Court decision in Dobbs v. Jackson Women’s Health Organization may be the most important for women’s access to abortion since 1973.
Judge Samuel A. Alito Jr.’s draft opinion is dated February 10, or almost three months ago. In accordance with ordinary court practice, additional drafts have since circulated, as Justice Alito refined his arguments, made changes to accommodate his allies, responded to criticism in one or more concurring or dissenting drafts, and, more importantly, he worked to make sure he didn’t lose his majority.
The draft was marked “court opinion,” meaning it was intended to reflect the views of at least five justices. Politico, which obtained the document, reported that five court members had voted to overturn Roe shortly after the argument in December: Justices Alito and Thomas and the three court members appointed by President Donald J. Trump, Justices Neil M. Gorsuch. , Brett M. Kavanaugh and Amy Coney Barrett.
Those five votes agreed with the questions those judges asked in the argument. They were also consistent with Trump’s promise to appoint judges who would override Roe, which established the constitutional right to abortion in 1973.
“That lineup remains unchanged as of this week,” Politico reported.
Still, Justice Alito was no doubt concerned that Chief Justice Roberts, who outlined a middle position in the argument, might threaten his majority. The chief justice suggested the court could uphold the Mississippi law at issue in the case, which bans abortions after 15 weeks, but stop short of invalidating Roe outright.
That position would have been seen as extreme just a few years ago, as it would remove the key element of Roe and Planned Parenthood v. Casey, the 1992 decision that reaffirmed what she called Roe’s “central control”: that “a state may not prohibit any woman from making the final decision to terminate her pregnancy before it becomes viable.”
Viability, the fetus’s ability to survive outside the womb, is these days around 23 weeks, which means Mississippi’s 15-week law is in stark disagreement with Roe and Casey. But the Chief Justice’s approach, whether seen as incremental or unprincipled, would have made abortion available, for now, to many people.
In an editorial last week, The Wall Street Journal expressed concern that Chief Justice Roberts was trying to persuade Justices Kavanaugh and Barrett to take their more limited approach.
The goal of the leak, then, may have been to lock up the five-justice conservative majority.
“I would be wary of jumping to the conclusion that the leaker is necessarily someone who opposes overturning Roe v. Wade,” said Richard L. Hasen, a professor of law at the University of California, Irvine.
Kermit Roosevelt, a law professor at the University of Pennsylvania, said the source was likely trying to raise the price of changing positions.
“In terms of who leaked it and why, it seems much more likely to me that it came from the right in response to an actual or threatened defection by one of the five who voted to override Roe,” he said. “Leaking this early draft makes it more expensive for a defector because now people will think he changed his vote after the leak in response to public outrage.”
Professor Hasen said that there was another right-wing benefit of disclosure of the draft opinion.
“In fact, this kind of leak could help the likely future majority to overturn Roe if it shifts the conversation to the issue of Supreme Court secrecy and the danger of leaks about the legitimacy of the process,” he said. “That’s better than a conversation about the possible illegitimacy of overturning long-standing precedent allowing reproductive choice. It could also be intended to soften the blow by signaling to everyone the earthquake that is coming.”
Even as Chief Justice Roberts said Tuesday that he had ordered an investigation into what he described as an “egregious breach of trust,” it was not clear that the leak violated any law. As Chief Justice Warren E. Burger wrote in a footnote in his dissent in the Pentagon Papers case, which refused to block the publication of a secret history of the Vietnam War: “ No statute gives this court express power to establish and enforce maximum security measures. for the secrecy of our deliberations and records.”
Nonetheless, he noted, the court is not powerless to root out and punish the source: “I have little doubt about the inherent power of the court to protect the confidentiality of its internal operations through whatever judicial action is necessary.”
The reasoning in the draft opinion is what one would expect from Justice Alito, a fierce critic of Roe and Casey, said Richard W. Garnett, a law professor at Notre Dame.
“Observers or commentators familiar with the case are unlikely to be surprised by the possibility that Judge Alito has written a majority opinion finding that those decisions were ‘grossly wrong,’” said Professor Garnett.
“However, in any event, intentionally leaking a draft opinion by an employee or member of the court would be a gross betrayal of trust, particularly if the leak was an effort to further partisan goals or to undermine the work and legitimacy of the court. court”. Professor Garnett added. “Whatever our views on particular legal issues, we should all hope that judges are not swayed by such efforts.”
The Supreme Court confirmed Tuesday that the draft opinion was authentic, but cautioned that it “does not represent a final decision of the court or the final position of any member on the issues in the case.” Mississippi Attorney General Lynn Fitch said in a statement, “We will let the Supreme Court speak for itself and await the official opinion of the court.”