On Tuesday midnight, Politico released a leaked draft opinion by Justice Alito announcing the overturn of Roe v. Wade, a monumental decision that changes the face of abortion jurisprudence in America for decades and which we would debate until hell freezes over. Leaving aside the fate of Roe, for our Nation to survive as a functional Republic, we must make something very clear: the leak is a reckless assault on the integrity of the Supreme Court and the leaker must face appropriate consequences for it regardless of his or her status and/or position.
Leaking an entire draft of a majority opinion of the Court is a clear, brazen attack on the functionality and legitimacy of the bench. The Supreme Court has never suffered such a massive leak in its recent history. This did not happen when the Court decided similarly controversial cases like Bush v. Gore or National Federation of Independent Business v. Sebelius. There was an attempt to assault the confidentiality that the Supreme Court has built throughout the decades.
The Framers made it clear that the Supreme Court, unlike the other two branches, must always be independent of politics. Its legitimacy depends entirely on the People’s belief that its decision-making process is defined by a sincere, legal-based among the top legal minds of the country, free from outside influence.
Subjecting the bench to public outrage and unwarranted external pressure by leaking documents to the press lights this whole process on fire and gives interest groups a roadmap to effectively transform SCOTUS cases into the circus of Congressional hearings. The Supreme Court must make decisions according to what the laws are, the intent of the Framers, and most importantly text of the Constitution, not on the strength of market-tested talking points that are screamed by mobs outside the building.
By leaking the draft, the informant is not only attempting to harm the legitimacy of the Supreme Court, but is also seeking to deliver an unprecedented blow to the inner workings of the bench. The Court has a small, collegial atmosphere. Justices must feel free and safe sharing their drafts and opinions with other members of the Supreme Court, especially with those who have an opposing view, which is a fundamental part of the process.
Regrettably, Justices will now work not under an atmosphere of deliberation but of deep mistrust and suspicion. They now know there are activists within the building who are more than willing to put the integrity of the Supreme Court on fire in order to score a political win.
Before anyone tries to argue the opposite, the leaker is not a “whistleblower” or a “hero.” Whoever sent the draft to Politico had the apparently clear goal of mustering public outrage to force the Justices to change their opinion. While this is an accepted practice in elected bodies like Congress, it is unacceptable to invoke the power of the mob to pressure nine judges to make a decision that is based on pure fear rather than pure Constitutional reason.
Chief Justice Roberts rightfully said the leak was an “egregious breach of trust” and ordered an investigation on the origin of the leak. The leaker has betrayed the institution he or she allegedly serves. If the informant was a clerk or a cabal of them, they should face proportional consequences, including immediate termination or disciplinary sanctions through the American Bar Association. If the perpetrator was a Justice, then Congress must immediately move forward with articles of impeachment and convict.
This must be done regardless of the political ideology of the individual responsible if the leak came from Sotomayor’s or Thomas’ office is neither here nor there. The leaker tried to assault the Court and the Court must act appropriately.
If it was a liberal clerk/justice who leaked the draft—with the goal of galvanizing progressive public opinion to force the hand of Congress to either pack the Court or destroy the Filibuster (or both) in order to pass blank legalization of abortion—then it is clear that the left’s commitment to democratic norms only applies when it gives them the policy objectives they like. This will prove that they are more than willing to dynamite two-thirds of our branches of government so that things go their way.
If the leak is not appropriately punished, the precedent will be set that offenses against the constitutionality of the Supreme Court will go unpunished and the hyper-politicization of the Court will be complete, making it impotent to solve disputes. Founding Father Alexander Hamilton in Federalist 78 warned that the liberty of the people can never be endangered “as long as the judiciary remains truly distinct from both the legislature and the executive.” Sadly, with no legitimate ways to solve legal disagreements peacefully, similarly to Congress and the White House, the American Republic will be well on the way to its own dissolution. We must fix this now.