How the U.S. Supreme Court could suffer long-lasting damage from the Roe v. Wade leak

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On Jan. 22, 1973, Time magazine published details about a U.S. Supreme Court decision before it had been officially released — the landmark Roe v. Wade abortion case.

Almost 50 years later, a decision about the case has leaked again, but this time, the impact has rocked the U.S.

Time had published the details just two hours before the ruling went public. But this time, the online news magazine Politico published a full 98-page first draft of the court’s decision.

The development has shocked court observers over the unprecedented security breach and prompted questions about whether the court has suffered permanent damage to its legitimacy.

“The damage done to the Court as an institution will likely be lasting,” Jonathan Turley, a law professor at George Washington University Law School, wrote in his blog. “This shattered a long tradition of the court of strict secrecy and integrity in the handling of drafts.”

The leaked opinion, dated Feb. 10, 2022, and authored by Associate Justice Samuel Alito, suggests the court’s conservative majority is poised to overturn the landmark 1973 decision legalizing abortion.

The draft decision is not yet final, but it has led a political firestorm and sparked outrage from many supporters of Roe v. Wade while fuelling concerns about the fate of abortion rights in the U.S.

But the leak itself, and what it means for the court, has also come under scrutiny. Chief Justice John Roberts issued a statement that he had ordered an investigation but noted that “to the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed.”

Nevertheless, legal experts and court observers say the leak could have significant ramifications. 

Demonstrators protest outside of the U.S. Supreme Court on Wednesday in Washington. (Alex Brandon/The Associated Press)

Integrity at stake

The court prides itself on its integrity and ability to make decisions outside of the political spectrum, said Timothy Johnson, a University of Minnesota law professor whose books include Oral Arguments and Decision Making on the U.S. Supreme Court.

If there’s reason to believe the leak was politically motivated, that’s a problem, he said.

“When you have a week like this, it really does call into question the integrity as an institution.”

While political wrangling and shenanigans are expected in other levels of government, this action is not expected of the high court, Johnson said. 

“The integrity with which the justices handle their jobs — whether or not they agree with one another — is something that is of utmost importance and that then turns to the public and how the public views the court.”

In recent years, the court has taken some hits in terms of public opinion polls, Johnson said. Still, the public holds the court in higher regard than any of our other federal institutions and state, he said.

So anything that’s going to harm its integrity is going to be problematic for the justices. If they don’t have the integrity that they need they can’t enforce their decisions because people are going to say, why should we listen to the court?”

WATCH | U.S. Supreme Court reportedly set to overturn abortion rights:

Draft opinion suggests U.S. Supreme Court set to overturn abortion rights: report

Anti-abortion activists and supporters of abortion rights took to the streets of Washington, D.C., upon hearing that the U.S. Supreme Court may overturn the 1973 Roe v. Wade ruling that legalized abortion. 2:41

Peter Irons, a professor emeritus political science at the University of California San Diego and author of A People’s History of the Supreme Court, agreed that the leak is part of the general decline of trust in institutions.

“That of course, has been exacerbated greatly in the last five years. But the court itself, there’s this myth that it’s sacrosanct. Well, that’s all gone.”

Leaking rare, not unprecedented

However, this isn’t the first time secret details or leaks have sprung from the Supreme Court. As Jonathan Peters, a media law professor at the University of Georgia noted on Twitter, leaking from the Supreme Court is rare, but it’s not unprecedented. 

As far back as 1852, in the case of Pennsylvania v. Wheeling and Belmont Bridge Company, 10 days before the court handed down its decision, the New York Tribune reported the outcome, he said.

For the infamous Dred Scott slavery ruling in 1857, where the court said that people of African descent, free or enslaved, were not U.S. citizens, two justices had provided their dissenting opinions to the press before the court released its majority opinion, he said. And in 1981, Elizabeth Olson, a UPI reporter, obtained a document appearing to indicate the outcome of an important sex discrimination case.

Other court details have leaked as well, he noted. In 2004, for example, a group of law clerks from the 2000 term leaked to Vanity Fair the details of the secret deliberations in Bush v. Gore.

In 2012, CBS’s Jan Crawford reported that Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc. Meanwhile, there have been books published revealing other secret details about the court’s workings. 

“So I would say that leaking in general is not unprecedented (but still very rare), and leaking a full draft majority opinion does seem to be unprecedented,” Peters wrote.

Public relations problem

Dale Carpenter, professor of constitutional law at SMU in Texas, said the leak is also a public relations problem for the court, which is increasingly seen as political. 

“And it just kind of erodes the confidence of the public in the courts in general in their competence and their ability to do their job.”

WATCH | Canada will welcome American women seeking abortions, says minister:

Emotional reactions to potential overturning of U.S. abortion law

Emotions ran high outside the U.S. Supreme Court, where pro-choice and anti-abortion groups reacted to a leaked draft opinion showing a majority of justices were in favour of overturning the ruling that legalized abortion in the country. 5:16

As well, the leak could also erode trust among the justices and their clerks, he said. 

Johnson agreed, saying that “when you are a family of nine and you start mistrusting who might be doing what, that is not going to help anything for future cases.”

As for whether the court can recover from this black eye, Johnson said it has bounced back following controversial decisions including Bush v. Gore. 

“The court has always seemed to bounce back. And the question is going to be … whether this is where the line has been crossed, whether people really start believing the court is too political to listen to.”



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