by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Yesterday, Politico published a draft opinion for the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, and today the court confirmed that the leaked document is genuine. The issue in Dobbs is the constitutionality of a 2018 Mississippi law banning most abortions after fifteen weeks. The draft opinion, which was written by Justice Alito and circulated to the other members of the court on 2/10/22, upholds the Mississippi law. More importantly, it does so by completely striking down Roe v. Wade and Planned Parenthood v. Casey, the cases in which the Supreme Court had previously found a constitutional right to abortion.
While there have been some unsettling leaks from within the Roberts court in the past, this breach is unprecedented as far as I know, and the legal world is in a state of shock. It is absolutely essential that the members of the court are able to discuss issues among themselves with candor and trust. If they can’t do that with confidence, it will severely undermine the administration of justice and the rule of law.
We don’t yet know who leaked the draft, or why, but most commentators seem to think the culprit was probably a left-wing ideologue who hoped to provoke a show of force by the pro-choice coalition and intimidate some of the conservative justices into withdrawing their support for the draft opinion. If that explanation turns out to be correct, it will be yet another instance of something we’re seeing far too much of these days: people putting their partisan and ideological commitments above the good of the country and its institutions. If that was indeed the strategy, it has already succeed in part. The Supreme Court is in lockdown and surrounded by angry protestors. If the strategy were to succeed in full—or even if it were merely to appear to succeed—it would further undermine the administration of justice and the rule of law. Using intimidation tactics to compel Supreme Court justices to modify their decisions is the stuff of banana republics.
Using intimidation tactics to compel Supreme Court justices to modify their decisions is the stuff of banana republics.
Regardless of who leaked the draft and why, it will be hard for the court to recover from this, and it won’t recover at all unless Roberts can track down the source of the leak, ensure that everyone involved is severely punished, and take steps to stop the leaks once and for all. And that’s assuming the leaker wasn’t a justice or a clerk. If the leak occurred because of an ethical lapse by a member of that inner circle, then impeachment would certainly be in order, and God only knows what it will take to restore a semblance of trust and collegiality within the court.