Politically motivated leaks are no big deal in today’s partisan politics. But something happened today that is utterly unprecedented.
A draft Supreme Court opinion overturning Roe v. Wade was leaked. To my knowledge, this has never happened before. Arguably, it constitutes a crime – a theft of federal property. Even if not, it’s a shocking breach of ethics.
The leak was obviously by one of the three Justices in the liberal wing of the Court, or one of their 10-12 clerks who have access to the internal deliberations of the Court. It was presumably for the purpose of ginning up a public outcry to pressure one or more of the majority justices to change his or her mind.
Something somewhat similar happened in the Supreme Court’s decision upholding Obamacare. Chief Justice Roberts initially was on the side of four conservatives to invalidate the law, but he was persuaded to change his mind. The outcome was a 5-4 decision upholding it.
But in the Obamacare decision, there was no leak of a draft opinion. There was no breach of Supreme Court deliberations or confidences. Roberts simply changed his mind in the face of extreme and unrelenting political pressure.
That’s not illegal or unethical. Cases that reach the Supreme Court are the hard ones, and I can’t blame Roberts for changing his mind (though I do blame him in the Obamacare case for ultimately making the wrong decision).
The leaked opinion overturning Roe v. Wade is something altogether different. The Court, the law, the nation and the people are the weaker for it. The left will stop at nothing.
I doubt the leaker was a clerk. The clerks are very smart people with promising and lucrative careers ahead of them. Big law firms are offering them signing bonuses of several hundred thousand dollars these days. They wouldn’t jeopardize those careers for a political crusade. And I doubt liberal Justices Breyer or Kagan would ever do such a thing – they’re libs with whom I often disagree but they’re also smart and ethical people.
I suspect the other liberal Justice, the one who has publicly and intemperately excoriated the Court from the bench when she gets outvoted, and did so to an appalling degree in the oral arguments over this particular case. I suspect Justice Sotomayor.
Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.