At Reason today, senior editor Elizabeth Nolan Brown writes that “Alito’s Draft Opinion That Would Overturn Roe Is a Disaster of Legal Reasoning.” After quoting a number of fellow libertarian writers disputing Alito’s reading of history and/or disputing the idea that historical precedent is a valid basis for constitutional interpretation, Brown writes:
Some people are still lingering on how or why the draft was leaked and what it means. Some—including Senate Minority Leader Mitch McConnell (R–Ky.)—are even calling for the leaker to be criminally prosecuted.
But this obsession with process and punishment over the substance of the opinion is pretty weird. “The Court’s credibility doesn’t depend on ceremonies or secrets or mystique. It depends on it getting the answers right,” notes Timothy Sandefur, an adjunct at Cato and vice president at Goldwater Institute. “If it gets the answers wrong; no amount of officialdom and ritual will save it. If it gets the answers right, none is necessary.”
This sudden laissez-faire attitude toward “process” is odd for a pro-choice cohort that regularly defends Roe on the basis that it is “settled precedent.” Just yesterday, Brown was writing that Alito’s draft “would set fire to those precedents [i.e., Roe and Casey].” Today, she’s arguing that the “obsession with process” matters less than whether the Court got “the answers right.” Of course, legal precedents are different from the (largely) unwritten norms surrounding the leaking of a Supreme Court opinion, but the basic premise — that a particular decision is objectionable because it violates Court tradition — is the same. On top of that, there are real questions about whether the Supreme Court leak was even legal, going above and beyond the violation of historical norms to a violation of the law itself. Reuters reports:
Drafts of Supreme Court opinions are not classified documents like national security files, said University of California, Berkeley criminal law professor Orin Kerr, meaning their disclosure would not automatically trigger a criminal investigation. But even a leaker with authority to handle a draft opinion could potentially be charged with stealing or converting federal government property for their own use, he said.
So is “this obsession with process and punishment” all that “weird” if the leak was actually a crime? Brown doesn’t even raise the question. But even if it was technically legal, the leak was a shameful attempt to replace the normal process for constitutional interpretation — focused on “getting the answers right,” as Sandefur argued — with the pressures of mob rule. As NR’s editors wrote:
The legitimacy of the Supreme Court’s vital constitutional duty to pronounce authoritatively what the law is in cases where it is called to do so hinges on the integrity of its process. The Court has thus been admirably disciplined about maintaining the secrecy of its deliberations until rulings are announced. Without that discipline, the Court’s decision-making would be subjected to intense political pressure — the very antithesis of a system that insulates the judiciary from politics so that cases can be decided pursuant to law, without fear or favor. The Court’s vital constitutional role, vindicating a rule of law not men, would be destroyed. Worse, the leak could inspire violence against the Court or the justices.
Brown and Sandefur don’t seem to be concerned by the prospect of mob rule — so long as the mob rules in their favor.