Supreme Court was one of our last trusted institutions. Can reputation survive Roe leak?
It’s safe to say that trust in our nation’s formidable institutions has already dipped quite low. Americans distrust politicians in Congress, and the 2020 presidential election is still subject rumor-laden conspiracy theories.
And on Monday night, when Politico published a leaked draft of a potential opinion overruling Roe v. Wade, the last institution that has remained somehow, largely above the fray of politics, took a big hit.
I’m unabashedly pro-life and would be glad to see a 5-4 majority opinion written by Justice Samuel Alito overturn Roe (and the Casey case that modified it) and return the issue of abortion back to the states where it belongs. However, it’s not clear if this majority opinion, written in February, is the final draft or where the remaining eight justices stand.
The fact that such a landmark opinion — whatever way it goes — was leaked to the public before it became official and the Supreme Court released it is incredibly damaging to one of the most trusted institutions in America, and certainly one of the last ones worthy of such confidence.
A leak like this is rare. According to law professor Jonathan Peters, one of the last major leaks was in 2012, when Jan Crawford reported “that Chief Justice [John] Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc.” Peters suggests occasional leaks go back to 1852, but even still, there’s only a handful.
As influential as the Affordable Care Act case was, suffice it to say, overturning Roe would instigate a seismic shift in this country on law and abortion, highlighting the polarized views.
Why it was leaked remains to be seen: It could be anything from shoring up and cementing five majority justices, an attempt to encourage one to dissent after they see an outcry, or just to give states time to pass trigger laws that would take effect when it’s released.
One of the most reputable sources on the Supreme Court called the leak “the gravest, most unforgivable sin” possible at the court.
This is the correct view. Leaking a huge piece of legal news as if it’s a game of telephone demonstrates a grave disrespect to the autonomy and authority of the Supreme Court.
A leak like this further degrades an incredible institution that, as the executive branch has sown fury and doubt among Americans and members of Congress have caused Americans to grow cynical and bored of their antics, remains above these pedestrian quarrels.
The Supreme Court has been a beacon of discipline, intellect, dedication and fervor only for the law. The nine justices have largely been mysterious, sharing things only with their colleagues and reliable clerks.
This leak egregiously undermines the trust the justices have so carefully developed over decades and threatens the future of similarly landmark rulings. Will the process of deliberations be tainted now? Whom will the justices trust?
A Fox News host wrote that Roberts should announce: “ ‘Sorry to the innocent, but every single clerk is fired.’ ”
Tough but hard to disagree: Swift action should be taken to find the leaker, to understand the person’s motive and to bring down appropriate punitive measures.
As much as Americans had been wanting to know the Supreme Court’s majority decision on the abortion case before them, finding out via a scandalous leak is the stuff of movies.
Should the real majority opinion fail to reflect the leaked document that overturns Roe and Casey distrust will further undermine the Supreme Court and undoubtedly will communicate that the place most sealed from media and public influence is in fact, pressured by it.
With Americans’ trust in other institutions hanging by a thread, the Supreme Court had honorably remained outside most of the drama, aside from justice nominations. Now, its honor is tarnished, too.
