WASHINGTON — Sources have motives, and the leaked draft opinion overturning Roe v. Wade raises a matter as old because the Roman Empire. Cui bono? Who advantages?
Not the Supreme Court as an establishment. Its popularity was in decline even before the extraordinary breach of its norms of confidentiality, with much of the nation persuaded that it’s little different from the political branches of the federal government. The interior disarray the leak suggests, wholly at odds with the decorum prized by Chief Justice John G. Roberts Jr., was a blow to the legitimacy of the court.
Relations among the many justices, too, on the evidence of questioning at arguments and statements in opinions, have turned fraught and frosty. “Will this institution survive the stench that this creates in the general public perception that the Structure and its reading are only political acts?” Justice Sonia Sotomayor asked when the challenge to Roe was argued in December, because it became clear that five justices were able to overrule the choice.
The actual fact of the leak can’t be separated from its substance. Only a move as extraordinary as eliminating a constitutional right in place for half a century could transform the court into an establishment like every other in Washington, where rival factions disclose secrets within the hope of obtaining advantage.
“Until now, a leak of this type would have been unthinkable,” said Peter G. Verniero, a former justice of the Latest Jersey Supreme Court. “The protocol of our highest court has been seriously ruptured. The leaking itself reflects one other sad step toward casting the court as a political body, which, whatever your chosen jurisprudence, is most unhealthy for the rule of law.”
The court sustained collateral damage in March, when it emerged that Virginia Thomas, the wife of Justice Clarence Thomas, had sent incendiary text messages to the Trump White House within the weeks leading as much as the Jan. 6 attack and that Justice Thomas not only had did not disqualify himself from a related case but in addition had solid the only real noted dissent.
The harm from the leak was more direct, raising questions on whether the court is able to functioning in an orderly way.
Justice Samuel A. Alito Jr.’s draft opinion is dated Feb. 10, or almost three months ago. Under the court’s strange practices, additional drafts have circulated since then, as Justice Alito refined his arguments, made changes to accommodate his allies, responded to criticisms in a number of draft concurrences or dissents — and, crucially, worked to ensure that he didn’t lose his majority.
The draft was marked “opinion of the court,” meaning it was intended to reflect the views of at the very least five justices. Politico, which obtained the document, reported that five members of the court had voted to overrule Roe soon after the argument in December: Justices Alito and Thomas and the three members of the court appointed by President Donald J. Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
Those five votes were consistent with the questions those justices asked on the argument. They were also consistent with Mr. Trump’s vow to appoint justices who would overrule Roe, which established a constitutional right to abortion in 1973.
“That lineup stays unchanged as of this week,” Politico reported.
Still, Justice Alito was little doubt nervous that Chief Justice Roberts, who sketched out a middle-ground position on the argument, might threaten his majority. The chief justice suggested that the court could uphold the Mississippi law at issue within the case, which bans abortions after 15 weeks, but stop in need of overruling Roe outright.
That position would have been viewed as extreme just just a few years ago, as it could eliminate the important thing element of Roe and of Planned Parenthood v. Casey, the 1992 decision that reaffirmed what it called Roe’s “central holding” — that “a state may not prohibit any woman from making the last word decision to terminate her pregnancy before viability.”
Viability, the flexibility of the fetus to survive outside the womb, is as of late around 23 weeks, meaning that Mississippi’s 15-week law is flatly at odds with Roe and Casey. However the chief justice’s approach, whether considered incremental or unprincipled, would have left abortion available, for now, to many individuals.
In an editorial last week, The Wall Street Journal expressed concern that Chief Justice Roberts was trying to steer Justices Kavanaugh and Barrett to take his narrower approach.
The purpose of the leak, then, can have been to lock within the five-justice conservative majority.
“I can be wary of jumping to a conclusion that the leaker is necessarily someone who opposes overturning Roe v. Wade,” said Richard L. Hasen, a law professor on the University of California, Irvine.
Kermit Roosevelt, a law professor on the University of Pennsylvania, said the source was probably attempting to increase the value of switching positions.
“By way of who leaked it and why, it seems way more prone to me that it comes from the proper in response to an actual or threatened defection by considered one of the five who voted to overturn Roe,” he said. “Leaking this early draft makes that more costly for a defector because now people will think that they modified their vote after the leak in response to public outrage.”
Professor Hasen said there was one other profit to the proper from the disclosure of the draft opinion.
“This type of leak could in actual fact help the likely future majority overturning Roe if it deflects the conversation to the query of Supreme Court secrecy and the danger of leaks to the legitimacy of the method,” he said. “That’s higher than a conversation in regards to the potential illegitimacy of overturning longstanding precedent allowing reproductive alternative. It also might be intended to melt the blow by signaling to everyone the earthquake to come back.”
Whilst Chief Justice Roberts said on 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 within the Pentagon Papers case, which refused to dam publication of a secret history of the Vietnam War, “No statute gives this court express power to ascertain and implement the utmost security measures for the secrecy of our deliberations and records.”
Nonetheless, he noted, the court isn’t powerless to root out and punish the source: “I actually have little doubt as to the inherent power of the court to guard the confidentiality of its internal operations by whatever judicial measures could also be required.”
The reasoning within 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.
“It’s unlikely that any observers or commentators aware of the case are literally surprised by the chance that Justice Alito has drafted a majority opinion stating that those decisions were ‘egregiously unsuitable,’” Professor Garnett said.
“In any event, nevertheless, for an worker or member of the court to intentionally leak a draft opinion can be a gross betrayal of trust, particularly if the leak were an effort to advance partisan goals or to undermine the court’s work and legitimacy,” Professor Garnett added. “Whatever our views on particular legal questions, we should always all hope that the justices is not going to be swayed or influenced by such efforts.”
The Supreme Court confirmed on Tuesday that the draft opinion was authentic but cautioned that it didn’t “represent a final decision by the court or the ultimate position of any member on the problems within the case.” Lynn Fitch, Mississippi’s attorney general, said in an announcement, “We’ll let the Supreme Court speak for itself and wait for the court’s official opinion.”