The leak of a draft Supreme Court opinion overturning Roe v. Wade on Monday shook the country, foreshadowing the likely end of a nearly 50-year ruling granting federal protection for abortion rights.
But many conservative politicians and pundits have tried to argue that the real news isn’t the opinion and its sweeping implications for reproductive rights, but the fact that it was leaked. National outrage should only be directed at whoever tarnished the high court’s sacred reputation by releasing the draft, they bluster.
Nobody should be fooled: The reason right-wingers are suddenly fans of propriety again is because so much of their political agenda requires using the Supreme Court to advance policy far too unpopular for the democratic process.
Republicans desperately rely on institutions that operate outside of or counter to the principle of majority rule.
The leak of the draft opinion, which was published by Politico and is not final, appears to be without precedent in modern American history. A remarkable breach of protocol in an institution defined by extreme privacy, it’s a signal of how the Supreme Court has increasingly lost its mystique as an institution that transcends politics.
The leaker seemingly intended to influence the justices’ final vote on whether to overturn Roe v. Wade by sparking public debate and outrage, and/or reshape the political landscape ahead of the midterm elections. But the ideological leaning of the leaker is unclear. Supreme Court watchers have argued that they could plausibly be from either side of the debate over abortion rights, hoping to either chip away at the current anti-abortion majority on the court or lock in that majority using public pressure.
Still, many on the right have converged on the idea that, even in the absence of evidence that the leaker was a pro-abortion-rights individual, the leak was a horrific act. In fact, the horrific act.
Senate Minority Leader Mitch McConnell, R-Ky., told reporters Tuesday, “You need, it seems to me — excuse the lecture — to concentrate on what the news is today: not a leaked draft, but the fact that the draft was leaked.” Sen. Marsha Blackburn, R-Tenn., a member of the Judiciary Committee, said the leak was “an attack on the court.” Sen. Ted Cruz, R-Texas, called it “the most egregious breach of trust at the Supreme Court that has ever happened.” (He said he believed a “left-wing law clerk, angry at the direction the court is going,” leaked the opinion.)
Right-wing talking heads went even further in their fixation on the leak. Fox News has focused aggressively on the leak in its narratives. In a moment of hysteria, Daily Wire host Matt Walsh on Twitter characterized the leak as “an attack on our system 100000000 times more serious than the Capitol riot.” Breitbart News editor Rebecca Mansour claimed that the leak had produced a “freakout” that had resulted in the left calling for the Supreme Court to be “burned down.” (Mansour did not provide any examples.)
Set aside for a moment that conservatives do not know the ideology or intentions of the leaker and that the assumption that they're a liberal is therefore misguided. The big question is: Why are they so worried about norms all of a sudden?
After all, norms didn't matter when Republicans in 2016 blocked President Barack Obama’s Supreme Court nominee, Merrick Garland. Norms didn’t matter when Republicans went “nuclear” and altered the filibuster to confirm Neil Gorsuch to the Supreme Court the next year. Norms didn’t matter when Republicans used the filibuster during the Obama presidency more than it had ever been used in history, ushering Washington into a new era of bad-faith governance. And norms were systematically obliterated during the impeachment-defined President Donald Trump era on everything from international diplomacy to the rejection of a peaceful transfer of power.
The reason that the idea of a sacred Supreme Court matters so much to the GOP is because it is central to its theory of change: Republicans desperately rely on institutions that operate outside of or counter to the principle of majority rule.
The GOP has survived multiple recent presidential contests thanks to the fact that the Electoral College system isn’t based on the popular vote — and George W. Bush’s victory in 2000 was ensured by a politically sympathetic Supreme Court. Republicans also rely heavily on a legislative body that structurally overrepresents the rural and conservative part of the population — the Senate — to act as a bulwark against Democratic legislation. And they deploy the counter-majoritarian filibuster rule to thwart the Democrats even when Democrats manage to win a majority in a body that structurally favors the right.
The Supreme Court is a premier part of this antidemocratic toolkit.
The Supreme Court is a premier part of this antidemocratic toolkit. As an institution that faces no accountability from the electorate — and as a branch of government that Republicans, through a combination of sheer luck and procedural power plays, have arranged in their favor — it’s a powerful vehicle for defending the right-wing agenda and laying waste to progressive reform. As New York magazine’s Eric Levitz wrote in a sweeping essay about the right’s attentiveness to federal courts in 2020, much of the right-wing agenda is widely unpopular and primed to cause intense backlash, and using courts allows conservatives to circumvent the obstacles and consequences of realizing its goals.
“In some respects, the conservative movement’s obsession with the courts is a testament to its weakness,” Levitz argued at the time. “There is no popular majority for banning abortion, scaling back the welfare state, or eroding basic labor and consumer protections in the United States — and, judging by the millennial and Zoomer generations’ political views, there never will be. The right has responded to this reality by rapidly stocking the judiciary with as many 40-something-year-old reactionaries as it can find.”
Today, abortion rights remain broadly popular, and overturning Roe v. Wade remains deeply unpopular. But as Jay Willis, editor-in-chief of the legal analysis publication Balls and Strikes, told me, Republicans are banking on “the myth of an apolitical judiciary” to help them weather the backlash that will accompany an assault on abortion rights. While Republicans’ raw exercise of power in the White House and Congress has become entirely transparent, the Supreme Court is the last branch of government where the right can cloak its agenda in the idea of rights and technocracy that transcend vulgar everyday politics.
Protecting the Supreme Court’s reputation as made up of high priests rather than ideologues is a useful long-term strategy for the right. Willis told me this leak and potential future leaks will help puncture that myth — which many liberals still subscribe to — in an era in which the Supreme Court is more conservative than it has been in about a century.
“The court derives so much of its legitimacy by handing down its opinions like Moses descending from Mount Sinai,” he said. “I think people would be well-served to learn more about what goes on inside this black box and to understand that the justices are just like any other politicians they see on TV.”