The left’s leak of a draft Supreme Court opinion overturning Roe v. Wade is unprecedented

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.

49 thoughts on “The left’s leak of a draft Supreme Court opinion overturning Roe v. Wade is unprecedented

    • Speaking of trust, the trust in the Supreme Court justices has eroded dramatically over the past few years as it has become more political than ever in modern history. In addition, instead of focusing on a “Breach of Trust” one should focus on what the consequences are for the women of this great nation. Twenty-five percent of women under the age of 44 has had an abortion. Focusing on a breach of trust is like focusing on the security around the January 6th riot, insurrection and attempts to destroy our democracy.

      • I’m not sure what your point is in bringing up the Jan. 6 thing. Your logic seems to be that since some morons in buffalo hats vandalized the Capitol, it’s OK for the left to breach laws, ethics and norms related to the Supreme Court. I disagree with that logic.

        As for the issue of abortion (which is related to but distinct from this illegal and unprecedented leak at the Supreme Court) I would make several points.

        First, women will still be able to get abortions. Most states will continue to allow unrestricted abortion or at least abortion up to 15 weeks. Regarding the few states where elected representatives choose to be more restrictive than that, women will be free to hop in the car and drive to a neighboring state.

        To the extent the state-by-state changes wind up reducing the number of abortions, well, that’s a benefit to women too, since half those saved fetuses are female. (And by the way, a highly disproportionate number are black. Black lives matter, remember?)

        Yes, there may be a few women who don’t have their act together well enough to get an abortion within 15 weeks or hop in a car to drive to the next state. For those women, they are free to turn their born baby over to Social Services which will find the baby a loving home. At the expense of some inconvenience to a small number of dysfunctional pregnant women, babies will be born and will thrive with their adoptive parents. This is an outcome that I can live with.

    • Impeachment is a last resort for removing officeholders who have committed either common crimes or great offenses in their conduct of their office. People who toss the word around at the drop of a hat need to be impeached. That mean you.

      Admittedly, the Republicans set this off in this era by impeaching Clinton in the 1990s when there was no chance of conviction on the actual charges of perjury and obstruction of justice.

      Since then, the Democrats have been pressing for revenge.

      Leaking an opinion might be an impeachable offense at that, but the idea is impolitic given that Biden would select the successor, who on top of that would be a younger person.

      For another thing, we don’t know who the leaker was. It could have a court employee who pressured by a reporter or there could be a mole placed on the court staff by some faction or political organization. Maybe the person who did was conservative, not liberal. Maybe the person had no political motive at all and was just have a mental episode.

      We also do not know whether Samuel Alito’s draft will be the eventual majority opinion. Maybe Alito wants it to be, but that doesn’t mean any other member will sign on to it. That’s why it’s called a draft.

  1. “If a clerk were ever caught doing this, his career would be toast.” On the other hand, he (or she) might well become the toast of the left, who will never again lack for celebrity and lucrative employment and/or political opportunities. This action is of a piece with everything the left has done in recent years — destroying cities, destroying history, destroying every cultural norm and time-honored institution of our civilization. Why should leftist activists now hesitate to violate the integrity of its highest court? Indeed, it must be an honor to be so dishonorable, and to be the first to have breached decorum so spectacularly on behalf of such a noble cause — that being the slaughter of the innocents.

    • I have to agree with you, there is no moral ethics these days, just the legal kind and in that this violated everything but as you say, one will become a hero. I can’t help but wonder if this was not the Hail Mary for the fall elections, pushing moderates back onto the Blue side.

    • Cogently and, in my opinion, accurately assessed and stated.
      These types will be limited only by death. In life, they recognize no boundaries.

    • I find it quite interesting that Glenn’s article focused on the leak and not the substance of what it means if Roe is overturned, which is obviously likely. The Republicans are attempting to not say too much regarding the actual issue as they fear losing the vote of millions of women so they focus on the leak…which is absolutely ridiculous. What is the precise law that was broken by releasing these documents. Susan Collins feels like a fool who is either naive on these SCJ’s or she got played…again! Let’s discuss the substance of overturning this and what it means to women. If you continue to discuss the leak, you are simply just trying to be uncommitted on the actual issue.

      • The leak is news. The implications of Roe being overturned is not. Those implications have been debated for decades. Perhaps you think you have an angle on Roe that nobody has considered yet. OK, post it as commentary to one of the 10,000 or so articles on that subject.

        Meanwhile, the article on which the rest of us are commenting is about the illegal and unprecedented theft of federal property that the Chief Justice of the Supreme Court has asked the U.S. Marshall to investigate.

      • Definitely agree the leak is news but not the “elephant in the room”! Just curious, what law was broken with this leak?

      • What is the “Value” of this draft as the code you are citing does not, in my opinion, fit the circumstances.

      • Maury, the substance is that the slaughter of the innocents will continue, but only in those states whose residents wish to continue it. The substance is that a “right” that has no basis, or predicate, in the Constitution will cease to be considered a right — it will still be a choice, however, in many states. As for the “millions of women” whose votes will be “lost,” Republicans never had those votes; but there are millions more who will recognize gratefully that Republicans have FINALLY accomplished something toward rectifying a national disgrace.

      • Maury, the Chief Justice of the United States Supreme Court, who has referred the matter to the U.S. Marshall, evidently disagrees with your legal conclusion that no law was broken. I’m with him.

      • Only time will tell IF they are to positively determine who the leaker was and what was their motive. One can not “assume” anything at this stage but I will be surprised, regardless of party affiliation and/or motive that they actually broke the law. If this was Russia…well, that’s entirely another discussion!

      • Maury, notice that the law cited by Glenn addresses “Whoever . . . conveys . . . any record . . . OR thing of value . . . .” The record need not have any “market VALUE,” as I read it. A crime was committed.

  2. I completely agree with what Mr. Beaton writes but am afraid that when all is said and done, this atrocity against the integrity of the legal system will somehow be swept under the rug.

    • What actual law was broken? One should focus on the substance of the article and not the leak otherwise you are avoiding the real issue, in my opinion.

  3. You’re much more in tune with the Court than I but I would also think that Sotomayer would be suspect #1. She’s arrogant and strident and I never thought she was judicious enough to be on the Supreme Court. She’s there with an axe to grind, not a Constitution to interpret.

  4. Heh … I wouldn’t be that surprised if a solid majority of SCOTUS Justices reconsider some aspects of the 8th Amendment. More specifically, the provision barring the infliction of cruel and unusual punishment. I could see a majority of the Justices taking a more loosely defined view of such punishments when applied to federal appointees leaking confidential information.

    Well maybe … or maybe not. A fella can wish though …

  5. Interesting about Sotomayer. She is and always has been a low flying duck. It’s not that I disagree with her but that she’s shown herself to be nothing but an affirmative action hire, ill informed and inarticulate. In the words of a dear friend “Often wrong but never in doubt.” I assumed it would be some clerk with a desire to be a martyr for the cause given that abortion is a sacrament among the Left. We shall see but if it is Sotomayer, is there a way to remove her? Maybe after Biden is gone or the Republicans take the Senate.


  7. Another possibility is the FBI or other intel agency is spying on the court and hacked their computer system or the home computer of a justice or clerk where they were working on the opinion.

      • The draft could have been obtained by foreign intelligence agency. Maybe a leaker within the agency’s own ranks then leaked it. Who could it have been, that case? British intelligence? Israel intelligence? Cuba? Iran? North Korea? Russia? Venezuela? All intelligence agencies collect whatever info they can get their hands on. It didn’t even need to be some country that is adversarial to the United States. The leaker could have just been out to stir up a mess.

        I don’t rate the possibility of some foreign interest being involved very high, but it is one of the possibilities. Until we know, we don’t.

  8. I am not at all surprised at the “leak” of the “draft opinion” in this case. Abortion is one of the sacred “rights” held so dearly by left-wingers. The same left-wingers who are convinced that their opinions are incontrovertibly correct and morally unassailable and who are quite comfortable in condemning any and all who do not share such opinions as “Nazis.” Recall further, that they have no scruples against physically attacking their “Nazi” opponents, nor do they condemn violence against them. The left has preached the gospel of “by any means necessary” and this breach of trust by one of their supporters with access to the inner workings of the Supreme Court is merely a practical demonstration of this left-wing principal in action. How can anyone be surprised by it? Furthermore, I predict that, should the identity of the perpetrator be revealed, he, she or it will face no disciplinary action. Remember Lois Lerner? Christine Blasey Ford? QED.

  9. I’m inclined to think that a leftist clerk might do this, and consider it a courageous act. Are there laws about Supreme Court confidentiality, or is this all tradition? Are there laws about leaks from any federal District or Appeals courts?

  10. Glenn,

    1) One must assume that the leak is real.

    2) There could be many drafts and revisions I assume.

    3) ‘Assuming’ that someone is the logical suspect is a dangerous and often flawed way to solve crimes.

    4) I wouldn’t point the finger at anyone. I do believe that some folks see themselves as ‘historic’ figures. I think they have a few principles that guide them but are too gutless to follow through when it comes to sealing their fate in history. That has been seen before by other Justices on the court.

    The truth is that the court was not supposed to make laws. Our elected representatives are and I wish the Court would force them to write the laws instead of doing it witn unelected, job until they are in rigor judges.

    If the court overturns Roe, the democrats will win big in November and in 2024. They will pack the court, and justice and the Supreme Court will be useless and ruined forever.

    In the mean time, abortions, like por smoking and many other things, will continue unabated one way or another.

    • Your final two paragraphs seem to say, first, that the baser elements of human nature will have their way, no matter what the law says, and, second, that principles often have unintended consequences, in the form of behaviors that run counter to the principles.

      Pretty cynical.

  11. I don’t agree that a ruling overturning Roe will result in Democrat electoral victories. Opinion polls, for what they’re worth, consistently show that a fifteen-week limit, like the Mississippi law in this case, is acceptable to a large majority of voters. Voters who are upset about attempts by schools to introduce their children to toxic racial and sexual agendas without their consent are hardly likely to vote for people who support killing children outright.

  12. There’s a snake in the grass at SCOTUS and I think it is Ketanji. She’s radical and said in her acceptance speech “We have overcome.” That’s code for “things will change now that I’m onboard.” She gave a law clerk permission to leak in order to get the youth out to vote in the midterms. Let the pink cap riots begin, then BLM, and Antifa. We always seem to be caught flatfooted when stuff like this happens. Another smokescreen to get the focus off a failing president, Biden.

  13. Glenn:

    Regarding the clerks, I think you are dead wrong.

    If a clerk did this, is found out and fired and/or jailed, the top liberal law firms will have a bidding war to get that clerk, with a 7 figure signing bonus, IF the clerk is not disbarred, whereby, it will only be an upper 6 figure signing bonus, paralegal job.

  14. Putting aside for the sake of argument the indisputable fact that abortion terminates innocent human life and is therefore a reprehensible act that deserves to be eliminated, neither the African-American nor Hispanic/Latino voting block gets too excited about abortion “rights.” In fact, polls uniformly show that these voting constituencies are both majority pro-life. The only group that supports abortion “rights” is—you guessed it–white, college educated females. They are not going to be turned out in any significantly larger numbers by the Court’s Opinion, and they are going to be counter-balanced, if not outweighed by normal women, i.e., those who are in traditional marriages with one or more children. Polls also confirm that a large majority of Americans support limitations on abortion, including “heartbeat” bills, and other curtailments on “abortion on demand until birth.” One need only look at the recent spate of laws curtailing abortion to observe that the pro-life movement also has many highly motivated members, and a ruling overturning Roe will likely cause them to turn out in larger numbers, ironically out of fear that the left-wing abortion lunatics will be voting in greater numbers. Moreover, if the draft leaked is to become the Opinion of The Court, it will only mean a return of the abortion issue to the individual states; hardly a proverbial “hill to die on” for the lefties. The 2022 elections are going to turn on economic issues, as usual. Since the Biden cabal shows no interest in doing anything that would lower gas prices nor decrease inflation and The Fed is going to continue to inflict economic pain with rate increases and resulting recession, I predict Republican gains in both House and Senate.

  15. Among the consequences of the leak is that it has prompted Sloppy Joe to make a statement containing his greatest malapropism yet, regarding the choice “to abort a CHILD.” Gad! What was he thinking??!!

    • C’mon man! He can’t think anymore.

      I agree with those here who said that any law clerk who leaked this would be in demand.
      I also don’t think it will mean an automyDem win in 2022.

  16. As for the belief that the leaker would be welcomed into lib-leaning law firms, I disagree. Lawyers have a higher respect for the Court than that.

    Moreover, as a practical matter, the leaker would almost certainly be disbarred for violating written, explicit Supreme Court ethics rules and may well face criminal prosecution (which is the basis for CJ Robert’s referral of the matter to the U.S. Marshall).

  17. There is no evidence that there was a leak. The Democrats are trying everything in their dirty tricks books to deflect from Biden’s ruinous policies. So many lies are whirling why do we not consider this one? True leakers ultimately need recognition while the issue is hot. That’s not happening so far and, as such, we should not consider the leak lie valid.

    • Um, I have to disagree with your assertion that there’s no evidence there was a leak. We have what looks to be a leaked document. Which is evidence of a leak.

      I guess you’re saying that this evidence is not very good. Ok. But I disagree.

      • It occurs to me. maybe the clerks sometimes show draft opinions or report other inside information to significant others or friends, with the admonition to keep it confidential. The friends of the clerks are upscale individuals just like the clerks are. Maybe the presumption that they will keep it confidential is very ingrained. Maybe there never have been leaks through this route before. Or maybe they have involved lesser issues and no one has paid much attention or has seen the leak as anything more than speculation.

        What I am getting at is, maybe a boyfriend, girlfriend or just plain friend of a clerk got hold of the draft and passed it along. If this what happened, it would show people something about the American elite the elite would rather not have people know – namely, the extent to which they treat the world as their playpen and consider themselves as not subject to any scrutiny from the outside world.

  18. Pingback: Dobbs was probably leaked by Sotomayor | the Aspen beat

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