On the menu today: One of the biggest Supreme Court decisions in generations spurs one of the biggest Supreme Court scandals ever. The extreme emotional reactions to the expected decision to overturn Roe v. Wade are likely to overshadow the fact that the leaking of a draft written by Justice Samuel Alito will be “an earthquake” within the halls of the Court, destroying trust among the justices and their clerks.
Suddenly, the Supreme Court Can’t Keep Secrets
Was it inevitable that one of the biggest Supreme Court decisions in generations would spur one of the biggest Supreme Court scandals ever? Way back in December, our Dan McLaughlin asked, “If the Court is doing something as dramatic — and as upsetting to the sorts of people who clerk for the liberal justices — as overturning Roe, will it be able to keep that a secret for seven months?” Dan’s instincts were correct.
Until a Supreme Court decision is officially released, that ruling is secret. Everyone involved in the Court understands their solemn duty to respect the justices’ deliberation and writing process, and the importance of keeping the rulings under wraps until their official announcement. Leaking that sort of information is a violation of trust and of a Court employee’s duty.
Sure, when a big decision is looming, lots of folks in Washington always hear rumors. But because we never know when a rumor comes from a truly informed source or just from some schmo who wants to pretend he knows what is going on, those rumors are rarely consequential. Other than the justices and their clerks and a handful of Supreme Court staff, the entire country learns of the Court’s decisions at the same time. We can argue about whether the Supreme Court has too much of a mystique about it, but at minimum, justices should be able to deliberate behind closed doors, toss around ideas, argue back and forth, try to poke holes in the other justices’ arguments, and sort out their decisions without worrying that what they said last week is going to turn up on the Internet next week.
Back in 2019, when CNN reported that Chief Justice John Roberts had changed his mind on a decision about the U.S. Census, Supreme Court watchers lined up and told CBS News how these sorts of leaks almost never happened:
It’s “super rare” for something like this to happen, said Leah Litman, a University of Michigan law professor who clerked for Justice Anthony M. Kennedy.
Such deliberations are steeped in secrecy and are subject to constant speculation from court watchers. That makes this new report illuminating not only for its content, but for the fact that insiders opened up to the outside world.
“One of the things the Court impresses on clerks the most is the clerks’ obligations of confidentiality,” Litman said. “Leaking the Court’s internal deliberations is just not something clerks do, and they know it.”
“Clerks are told to maintain secrecy about the workings of the Court, and they may risk harm to their careers by leaking information about specific cases,” said Matthew Tokson, a law professor at the University of Utah who clerked for Justices Ruth Bader Ginsburg and David H. Souter. Some law firms pay U.S. Supreme Court clerks six-figure signing bonuses at the conclusion of their clerkship. . . .
“These statements are designed to publicly cast doubt on the Court, and the Chief Justice, to serve some ulterior purposes,” said South Texas College of Law Houston professor Josh Blackman. “Whoever is behind these leaks should carefully reconsider their actions. Deliberations should remain private.”
Do you know why the Supreme Court had so few leaks, decade after decade? Because the people who worked there have understood that they had a duty to something more important than their own sense of satisfaction. They knew that ensuring that the institution they worked for ran smoothly was more important than any brief thrill that came from leaking a secret. Unlike the people who worked in the White House or on Capitol Hill, Supreme Court employees ran a tight ship instead of running their mouths.
Apparently, that era is over. Somewhere in the Court, there’s some employee — or perhaps a justice! — who thought that they could alter the outcome of Dobbs vs. Jackson Women’s Health Organization by leaking a draft written by Justice Samuel Alito.
Monday night, Politico reported a bombshell:
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
For some time after the initial report, some wondered if Politico had been duped by a fake draft. But it certainly looks and reads real enough, and if it was a fake, you’d figure that the Court — or at least one of Alito’s clerks — would have come out and said so quickly.
The New York Times noted that, “The release of the 98-page document is unprecedented in modern times. In the court’s modern history, early drafts of opinions have never leaked before the final decision is announced. And early drafts of opinions often change by the time the decision from the court is announced.” (Apparently, in the original Roe v. Wade case, a clerk informed a reporter about the decision “on background” ahead of time, with the understanding the reporter would only write about the case once the decision was announced. But the reporter wrote about it beforehand anyway, and a delay in the announcement of the decision meant that Time magazine had a story about the decision hours before it was public.)
Whether you like the overturning of Roe v. Wade or you hate it, everybody should loathe Supreme Court decisions getting leaked before the ruling is officially announced. As SCOTUSBlog tweeted, “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.” The justices and their staffs don’t need to agree or always like one other, but they need to trust one other — and now they can’t do that.
And yes, whoever did this almost certainly had an ulterior motive.
Former Hillary Clinton press secretary Brian Fallon quickly envisioned his own preferred narrative: “Is a brave clerk taking this unprecedented step of leaking a draft opinion to warn the country what’s coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider? All Democrats need to show the same urgency as the clerk who apparently risked his or her career to sound this alarm. Those on the inside know best how broken the institution is. We should listen.”
If the leaker were so brave, he or she would have wouldn’t have chosen to remain anonymous; he or she would have owned the consequences of the decision to leak the draft.
But Fallon’s theory doesn’t feel all that farfetched. A left-leaning clerk or justice would have more incentive to leak the draft than a right-leaning one, in hopes that the impending decision would generate some sort of public backlash, and presumably hope that public pressure prompted one of the right-leaning justices to develop cold feet. And for what it is worth, almost immediately after the leak, several conservatives speculated that it had come from Justice Sonia Sotomayor’s office, although so far there is no proof.
Could a conservative clerk or justice have leaked Alito’s draft? Maybe, the vote had originally been 5-4 in favor of Alito’s position, and then one justice got cold feet and reversed his or her decision. But a subsequent report in CNN — I guess everybody is leaking about internal deliberations now — told a different story: “It appears that five justices would be voting to overturn Roe. Chief Justice John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from Alito’s draft opinion, sources tell CNN, likely with the court’s three liberals.”
As for the decision itself, the decision illustrates why the leak is so abhorrent. In our government, the role of the Supreme Court is to determine if a given law violates the U.S. Constitution. We, as citizens, are going to see Supreme Court decisions we agree with and decisions we disagree with — sometimes strongly. But we all agree to abide by those decisions. A person’s perspective on “judicial supremacy” — the notion that the Supreme Court gets the final say, and cannot be altered without a constitutional amendment or a subsequent decision overruling them — often depends upon how they feel about the Court’s decisions lately. But our acceptance of the Court’s authority isn’t supposed to flip on and off like a light switch, based on how we feel about the justices or the president who appointed them.
The importance of precedent is another concept that stretches or shrinks depending upon what the speaker thinks. Sometimes, the Supreme Court just screws up and reaches the wrong decision — Dred Scott v. Sanford, Plessy v. Ferguson, Korematsu v. the United States. Oftentimes, a Supreme Court should step carefully, and respect the precedent of past decisions, and every now and then a Supreme Court should look clear-eyed at the consequences of a decision and declare, “Nope, our predecessors screwed up. This was wrong. A proper interpretation of the Constitution points in the other direction.”
You may see abortion as an abominable crime. You may see it as a vital means of ending an unwanted pregnancy. Or, like many Americans, you may come down somewhere in the middle, believing human life begins before birth but perhaps not at conception; wanting exceptions for rape, incest, or the life of the mother; or finding sex-selective and partial-birth abortions barbaric without wanting to outlaw all abortions.
Whatever you believe, you should recognize that since 1973, pro-lifers have lived with a Court decision that, in their minds, legalizes murder. In the two generations since 1973, the U.S. has elected pro-life presidents and pro-life Congresses, as well as pro-choice presidents and pro-choice Congresses, and they have enacted a legislative tug-of-war about when, where, and why an abortionist may terminate a pregnancy.
But pro-lifers were told that electing pro-life presidents, governors, members of Congress, and state legislators wasn’t enough — that the practice that they saw as morally indistinguishable from murder must be allowed to continue, until a Supreme Court decision overruled Roe v. Wade. So over decades of effort, pro-lifers went out and did that — with a lot of setbacks. Under our Constitution, pro-lifers did what they were supposed to do — they supported judges who they believed would deem Roe v. Wade wrongly decided. Overturning Roe v. Wade does not ban abortion; it returns the decision of abortion’s legality back to the state legislatures. If this decision comes to pass, it is likely that many red states will ban abortion or strictly limit it, and many blue states will keep it legal. And some Americans may well vote with their feet.
But now someone on the losing side of this decision wants to reverse it before it’s official by generating so much public outrage that one of the five justices changes their mind.
ADDENDUM: Today is primary day in Ohio and Indiana. In the Buckeye state, J. D. Vance enjoys a narrow lead, but Matt Dolan appears to have a lot of late momentum.
In case you missed it yesterday, despite all of that federal spending, Washington, D.C., has the highest unemployment rate in the country. Meanwhile, remember that alleged polling boost for Biden in early March?