Court leak risks stifling dialogue

While the leak of the draft Supreme Court decision to overturn Roe v. Wade is not more impactful than the possible decision itself, its magnitude should not be minimized.

To say the leaked draft opinion with five justices overturning the landmark decision was a breach of etiquette is a massive understatement. For a full draft on a case of this magnitude prior to a final ruling to come out like this is unprecedented.

For context, it’s almost comical how tight-lipped the court is. When I was a news reporter in D.C., I covered a few decisions. A few minutes before decisions are set to be announced, a bunch of credentialed reporters pile into a tiny room where a few court staffers stand on the other side of a table with a few boxes on top. Inside the boxes are paper copies of opinions. No one knows which decisions will be announced, all anyone knows is that the bigger decisions are usually saved until the end. And then a phone rings. A staffer answers the call, listens, nods and then opens the appropriate box and hands out printed decisions to reporters who hurry to make a call, type a story, tweet or whatever.

In the months leading up to decisions, seasoned pros watch oral arguments for clues as to which way justices are leaning and make projections from there. Then there are no more clues. Only silence from the court and speculation from analysts until the decision is announced months later.

The best coverage of the Supreme Court comes from SCOTUSblog, which had this to say about the leak: “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.”

Justices, like juries, need to deliberate without undue pressure. The court absolutely needs to be above political pressure, otherwise it’s just another legislative branch, but without elections and term limits.

The leaker might be a hero to some, especially if the motives of the leaker align with the ultimate decision. But the ends do not justify the means.

As to who committed the leak is anyone’s guess. Chief Justice John Roberts called it “a singular and egregious breach” of trust and called for the marshal of the court to investigate — hopefully the culprit is found.

It’s a no-win situation though. The breach of trust has already occurred and it’ll be hard to go backwards. Also, if the leakers’ motives align with the final decision, it’ll encourage future leaks. And no matter what judgement is given, this will not be the end of it.

I could see the leak having come from either side. Roe supporters could have leaked to try to pressure one of the five justices in the majority into changing their vote. But it’s also possible the leak came from a Roe opponent, who saw someone in the majority wavering and wanted to lock them into a position.

But no matter whichever side the leaker was supporting, everyone should be disturbed.

This will only politicize the court further and breed internal distrust.

Justices might make political calculations but they aren’t members of Congress. They don’t rule based on an avalanche of calls and letters from constituents. Or at least I hope not.

Justices deliberate and can persuade each other, but only with honest and open conversations. If there is no trust and justices fear that whatever they say or write will be published in Politico, then dialogue will die.

Whoever leakedabandoned ethics for self-serving reasons. I’m sure they thought they needed to do it and I’m sure many will agree. But they’ll all be wrong. Society won’t survive if we continue to burn down institutions for our own self-serving reasons.