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Angry That Justice Alito’s Draft Opinion Was Leaked? Don’t Be.

May 4, 2022, 2:27 PM

What’s more shocking: the leaked draft opinion by Justice Samuel Alito that will overturn a woman’s constitutional right to abortion, or the leak itself?

That’s not a trick question.

In what may be the scoop of the year, Politico got its hands on the leaked draft of the majority opinion that will outlaw Roe v. Wade. For the first time in nearly 50 years, American women will no longer be protected by the right to safe, legal abortions. Instead, women will be at the mercy of state legislators who can decide, as Texas has, to outlaw virtually all abortions, even in cases of rape or incest. (Texas still allows abortions in cases where the woman’s life is in danger or she’s at risk of a major bodily function being impaired.) To say that the pending ruling is an assault on women’s bodies and autonomy is not hyperbole.

But here’s what I find intriguing: Alito’s incendiary draft opinion (he labels abortion providers “abortionists,” and deploys classic anti-abortion terms like “life or potential life” ) isn’t what’s roiling some commentators.

Actually, some seem to find the leak the most upsetting thing of all. “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff,” tweeted @SCOTUSblog. “This leak is the gravest, most unforgivable sin.”

On her show on Fox News, Laura Ingraham also chimed in: “No matter what you think about this outcome, the leak itself represents a shocking and unprecedented breach of the court’s confidentiality, which is sacred, sacrosanct, and it’s key to the court’s ability on any issue to engage in the give and take and all the decision-making based on the Constitution, not because of political pressure.” She added, “I was a Supreme Court law clerk and I know because I saw it.” (She clerked for Justice Clarence Thomas.)

On the liberal side, there was also indignation about the leak. In an opinion column for Bloomberg, Noah Feldman, a professor at Harvard Law School and former clerk of Justice David Souter, calls the leak “a terrible blow to the court’s morale and process and legitimacy.” He also cautions about the “the loss of trust. All the justices will surely blame other chambers for the leak. Suspicion, doubt and distrust will follow.”

“Gravest, most unforgivable sin.” “Sacred, sacrosanct.” And “a terrible blow to the court’s morale and process and legitimacy.” My goodness.

Permit me to give you the peasant’s view of the high court: I find it very hard to get worked up that the leak is the biggest scandal in the high court. Yes, I know it’s unprecedented and shocking to insiders who’ve graced the halls. But from where I sit, the Supreme Court is certainly not sacred or sacrosanct, and, sadly, not always legitimate.

Let me say, however, that I understand some of the reasoning that Ingraham and Feldman lay out for arguing against leaks: That rendering an opinion is a give and take process among justices, and that leaks make it more difficult for justices to change their minds or craft a more nuanced opinion.

Anita Allen, a professor of law and philosophy at University of Pennsylvania, told me: “It seems to me that some people these days don’t believe in confidentiality and instead presume they have an ethical responsibility to causes.” She added, “it would have hurt no one to have allowed this dead-wrong opinion to come forward in a few weeks from now when the Court was ready to release it.”

All that might be true but did the leak really pose a threat to the integrity of the high court? Or is that belief based on some quaint, romantic notion?

I posed that question to Feldman, and he emailed me: “The court still has (had) plenty of legitimacy after gay marriage, holding back Trump and overturning lots of his worst decisions. Its polling numbers have been much better than other gov. institutions.”

Maybe better than some government institutions but that’s not saying much. According to a 2022 poll by Marquette University Law School, 53% say the court is “mainly motivated by politics” in its decisions, compared to 47% who believe that law is the main motivator. That same poll also finds that support for the Supreme Court continues to fall: in 2020, 66% approved of the court v. 33% who didn’t. Today, the approval rate has dropped to 51%, while the disapproval rate has risen to 46%.

The reality is that the court is polarized and partisan—and that’s how most Americans see it too.

And what better example of extreme partisanship than Alito’s draft opinion? Alito writes that Roe was “egregiously wrong from the start,” that “its reasoning was exceptionally weak, and the decision has had damaging consequences”—as if overturning Roe would result in only good consequences. He also had the audacity to say that Roe and related decisions “have enflamed debate and deepened division"—as if his decision would heal the nation.

At one point, Alito also plays a very cheap race card, writing in a footnote that early supporters of abortion rights “have been motivated by a desire to suppress the size of the African American population,” adding that “it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are black.” So Alito is now a protector of Black Americans? Who knew?

Of course, most notable of all, the opinion isn’t just chipping away at Roe; it calls for its total destruction.

So can we skip the pretense that the Supreme Court is above the political fray? Or that the justices are high priests of the Constitution?

Believe me, a leak of a pending opinion from its inner sanctums is the least of its problems.

To contact the columnist: Vivia Chen in New York at vchen@bloombergindustry.com