The unauthorized release Monday of a draft Supreme Court opinion outlining plans to overturn Roe v. Wade is unprecedented in modern history. But in hindsight, it makes some degree of sense that the case that would end the federal constitutional protection for abortion would also be the case that ends the era of treating the Supreme Court like a fundamentally unique government body that is immune from these types of leaks.
We shouldn’t, separate a discussion about the leak and the evisceration of Supreme Court norms from a discussion about the evisceration of a woman’s ability to get an abortion.
We can’t, and shouldn’t, separate a discussion about the leak, which was first reported by Politico on Monday evening, and the evisceration of Supreme Court norms from a discussion about the evisceration of a woman’s ability to get an abortion. The two are, at least in this particular episode, inextricably linked.
If the draft opinion holds, the five most conservative members of the court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — will overturn Roe and conclude that the Constitution does not protect a woman’s right to have an abortion. This would allow states to completely ban abortions. The liberal flank of the court — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — will dissent. And Chief Justice John Roberts, increasingly an island unto himself, remains a question mark. Roberts could, for instance, end up joining his conservative colleagues but write separately to complain that they went too far, too fast.
In the meantime, we will debate the question of who leaked the opinion, and why, until we obtain solid answers. The number of people who could obtain a draft of a Supreme Court decision could probably fit into a single room — we are basically talking about the nine justices and their 36 clerks, four for each justice. These clerks are law school graduates who have the opportunity to work for a federal judge for one to two years. Law clerks are sometimes called “elbow clerks” because they sit at the elbow of a federal judge and help the judge with aspects of writing opinions. Supreme Court law clerks stand at the top of an already elite heap and wield significant power in the crafting of opinions. Just ask Roberts, Breyer, Kagan, Gorsuch, Kavanaugh, Barrett and future Justice Ketanji Brown Jackson, all of whom have clerked on the Supreme Court.
My money is on a Supreme Court clerk who agrees with the majority’s decision to overturn Roe. It is still, even in a world without guardrails, difficult to imagine a justice himself or herself providing a reporter with this draft. For one, justices like to believe there is something different and special about them and what they do. Leaking this decision to the press does little more than pull back the curtain to reveal a relatively unflattering portrait.
In terms of why a member of the majority would leak this opinion, first, we are talking not just about the substance of the court’s expected, but still stunning, opinion. We are also talking about the leak and what this means for the Supreme Court as an institution. This game of distraction, an attempt to divide our focus, could be helpful to those who are hoping to stem the tide of rage that will result from killing Roe. Second, the leaker could be hoping to solidify the five-person majority. In case anyone was thinking about shifting their votes, they will now look like they were simply bowing to political pressure. Not a great look for a Supreme Court justice. Third, members of the majority may hope that the rage that many Democrats and progressives feel as a result of this opinion could fizzle out as time goes by. In this way, the more space between the decision and the midterm elections, the better.
It's difficult to escape the feeling that the wheels are starting to come off the Supreme Court.
Assuming the court’s draft opinion stands, it will upset decades of precedent, exacerbate fracture lines in our country, and essentially create two Americas — one in which women can obtain abortions and one in which they can’t. It could also usher in a new era in the court. To the extent it wasn’t completely already over, the time of viewing the court as run by wise people who exist in a realm of relative secrecy to divine the true meaning of the law is dead. Instead, we’ve arrived at the era of viewing the justices as members of a political body who sit atop a leaky ship.
It's difficult to escape the feeling that the wheels are starting to come off the Supreme Court. This leak, whether clumsy or brilliant, has cut at one of the foundational norms of the court: its secrecy. And this decision has cut at one of the foundational norms of our legal system: respect for past decisions. It's too soon to know how the car moves forward without its wheels.