Supreme Court leak: A turning point
“One of the biggest Supreme Court decisions in generations” has inspired “one of the biggest Supreme Court scandals ever,” said Jim Geraghty in National Review. The leak to Politico this week of Justice Samuel Alito’s draft opinion overturning Roe v. Wade will cause “an earthquake” inside the court, “destroying trust” and collegiality among justices, clerks, and court employees. The secrecy of justices’ deliberations is critical, and although stories of vote switching and other intrigues have spilled out on rare occasions, the publication of an entire draft opinion is unprecedented. Whoever leaked it—probably a clerk for a liberal justice—“had an ulterior motive,” perhaps to cause a massive public backlash that might give some of the conservative justices cold feet about overturning Roe. “Whatever the leaker’s motive,” said Noah Feldman in Bloomberg, it’s an “institutional calamity,” and the court’s investigation into the leak will only deepen the suspicion and anger among justices and clerks. “The Supreme Court is broken.”
The simplest explanation, said Jeremy Stahl in Slate, “is that an angry clerk of one of the progressive justices leaked the opinion,” to whip up public outrage and “galvanize” pro-choice progressives to attack Alito’s radical opinion. The “shrewdest” move, however, would have been if a conservative clerk who loves Alito’s opinion wanted to make it impossible for “fence sitters,” perhaps Brett Kavanaugh, to opt for a middle-path ruling that left Roe partially intact. Even those of us who see overturning Roe as “a calamity” should agree that leaking a draft opinion is no act of “bravery,” said Ruth Marcus in The Washington Post. The court “can’t function” if its internal deliberations run the risk of becoming “breaking-news alerts.”
Clearly, whoever decided to leak this opinion was engaging in “a raw political act,” said Jonathan Turley in USA Today. He or she “was willing to abandon every ethical and professional principle” to bring outside pressure to bear on the court as it goes through the process of creating its ruling on Roe. If it was a liberal clerk or justice, the leak may backfire, hardening the votes and opinions of the five conservatives who voted to overturn. Whatever the motive, the leak proves definitively that, despite some of the justices’ stubborn insistence to the contrary, “the court is no longer immune from politics.” This is a historic turning point. “The court will never be the same.”