The public square was consumed Tuesday with speculation about the future of abortion in the United States. That’s understandable, following the publication of a draft Supreme Court opinion overturning the landmark decision in Roe v. Wade. For the moment, however, we’re more concerned about the future of the Supreme Court itself.
The words “bomb,” “bombshell” and “unprecedented” flew about the airwaves, referring both to the draft opinion and to the leak that made it public. Commentators dutifully repeated the caution that a draft is only a draft, subject to change. Then they implicitly threw such caution to the wind, offering theories and analyses about the effect of an overturned Roe v. Wade.
With the court’s acknowledgment that the leaked document is an authentic draft, but not a decision, the temptation to address the reasoning in Justice Samuel Alito’s text intensified. If his opinion stands as the considered view of a majority of the justices, the court will have opened itself to a flood of legitimate criticism. It will be the first time in history that the court has overturned a decision affirming the rights of an entire class of citizens. But that time, thankfully, is not yet.
The leak shined a light on a bit of the court’s process by taking the wraps off what was supposed to be a confidential draft. But it also blew a hole in its institutional fabric, its integrity and its credibility.
The court’s justices are fond of saying that they are above politics. And indeed, the court’s political neutrality is crucial to its viability. The leak of an incendiary opinion concerning one of the most contentious issues in American politics just at the start of the midterm elections season seems suspiciously timed. That timing inevitably leads to some uncomfortable questions: Was a sitting justice behind this leak? The possibility seems unthinkable. Was it a clerk, acting with or without a justice’s knowledge? That seems only marginally more thinkable.
And what could have been the leaker’s motive? To inflame Democratic voters or energize the Republican base? Or perhaps to embarrass Alito and his fellow justices into moderating their views? Any of those outcomes would undercut the court’s authority, which depends on the public’s faith in its legitimacy.
Chief Justice John Roberts promised an investigation to find the source of the leak. Whether the investigation succeeds or not, the justices’ trust in one another will have been compromised — and that trust is essential to their ability to deliberate and refine their views. Part of that refining process occurs when justices circulate drafts of opinions, a collaborative exchange that surely would be different if justices knew they might be writing for public consumption.
Roberts seemed to suggest that the leak must have come from a member of the court’s “workforce” — its law clerks and permanent employees — and declared it “a singular and egregious breach of (the) trust” that exists between the justices and the “community of public servants who work here.” The Senate’s Republican leader, Mitch McConnell, called for criminal prosecution of whoever is found to be responsible.
He’s not likely to get anywhere with that idea, unless there’s evidence that the leaker committed a crime. Supreme Court deliberations are not national security secrets. The consequences that might befall the leaker, if identified, likely range from professional disgrace to disbarment, if applicable.
The damage to the court is likely to be longer lasting.