On January 22, 1973, Time magazine published details of a United States Supreme Court decision before it was officially published – the landmark abortion case Roe v. Wade.
Nearly 50 years later, a decision on the case leaked again, but this time the impact rocked the United States
Time had released the details just two hours before the judgment is made public. But this time, the online news magazine Politico published a full 98-page first version of the court’s decision.
The development has shocked court watchers over the unprecedented security breach and raised questions about whether the court has suffered permanent damage to its legitimacy.
“The damage to the Court as an institution is likely to be long-lasting,” Jonathan Turley, a law professor at George Washington University School of Law, wrote on his blog. “This broke the Court’s long tradition of strict secrecy and integrity in dealing with drafts.”
the disclosed opiniondated February 10, 2022 and written by Associate Justice Samuel Alito, suggests the court’s conservative majority is on the verge of overturning the landmark 1973 ruling legalizing abortion.
The draft ruling is not yet final, but it has caused a political storm and sparked outrage among many Roe v supporters. Wade while fueling concerns about the fate of abortion rights in the United States.
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 inquiry but noted that “to the extent that this betrayal of the Court’s confidences was intended to undermine the integrity of our operations, it will not succeed”.
Still, legal experts and court watchers say the leak could have significant ramifications.
Integrity at stake
The court prides itself on its integrity and its ability to make decisions outside the political spectrum, said Timothy Johnson, a University of Minnesota law professor whose books include Oral arguments and decision-making in the United States 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 challenges integrity as an institution.”
While political wrangling and shenanigans are expected at other levels of government, this action is not expected from the High Court, Johnson said.
“The integrity with which judges conduct their work – whether or not they agree with each other – is something of the utmost importance and that then turns to the public and how the public perceives the tribunal.”
In recent years, the court has taken a few hits in terms of public opinion polls, Johnson said. Yet the public holds the court in higher regard than any of our other federal and state institutions, he said.
“So anything that harms its integrity is going to be problematic for the judges. If they don’t have the integrity they need, they can’t enforce their decisions because people are going to say, why should we listen to the court?”
WATCH | The Supreme Court of the United States is about to annul the right to abortion:
Peter Irons, emeritus professor of political science at the University of California, San Diego and author of A popular history of the Supreme Court, agreed that the leak is part of the general decline in trust in institutions.
“That, of course, has been greatly exacerbated over the last five years. But the court itself, there’s this myth that it’s sacrosanct. Well, that’s all gone.”
Rare leak, not unprecedented
However, this is not the first time that secret details or leaks have surfaced from the Supreme Court. As University of Georgia media law professor Jonathan Peters noted on Twitter, Supreme Court leaks are rare, but not unprecedented.
As early as 1852, in Pennsylvania v. Wheeling and Belmont Bridge Company, 10 days before the Court was to issue its decision, the New York Tribune reported the result, he said.
For Dred Scott’s infamous 1857 slavery ruling, where the court declared people of African descent, free or enslaved, were not US citizens, two judges provided their dissenting opinions to the press before the Court delivers its majority opinion, he said. And in 1981, Elizabeth Olson, a UPI reporter, obtained a document that appeared to indicate the outcome of a major sex discrimination case.
Other court details were also leaked, he noted. In 2004, for example, a group of Mandate 2000 jurists leaked details of the secret deliberations in Bush v. Gore to Vanity Fair.
In 2012, CBS’ Jan Crawford reported that Roberts voted to strike at the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc. In the meantime, books have been published revealing other secret details of the workings of the court.
“So I would say that leaks in general are not unprecedented (but still very rare), and the leak of a full majority opinion draft appears to be unprecedented,” Peters wrote.
Dale Carpenter, a constitutional law professor at SMU in Texas, said the leak is also a public relations issue for the court, which is increasingly viewed as political.
“And it kind of erodes public confidence in the courts in general in their jurisdiction and their ability to do their job.”
WATCH | Canada will welcome American women seeking abortions, minister says:
Moreover, the leak could also erode trust between judges and their clerks, he said.
Johnson agreed, saying “when you’re a family of nine and you start getting suspicious of who might be doing what, that won’t help with future cases.”
As to whether the court can recover from that black eye, Johnson said he’s bounced back from controversial rulings, including Bush v. Gore.
“The court has always seemed to bounce back. And the question will be whether that’s where the line has been crossed, whether people are really starting to believe that the court is too political to be listened to.”