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Extraordinary Abortion Leak Threatens Trust at Supreme Court (1)

May 3, 2022, 5:34 PM

A seismic shock hit the U.S. Supreme Court on Monday with the leak of a draft opinion overturning the Roe v. Wade abortion-rights ruling, an extraordinary breach likely to further decimate trust among the justices at what was already a fractious time.

The Politico-published leak, which included a preliminary breakdown of the individual justices’ votes, marked the first time in modern Supreme Court history that a draft opinion was made public months before it was likely to be released. The draft, written by Justice Samuel Alito as a potential majority opinion and stamped with the date Feb. 10, said Roe was “egregiously wrong.”

“For an employee or member of the court to intentionally leak a draft opinion would be a gross betrayal of trust, particularly if the leak were an effort to advance partisan aims or to undermine the court’s work and legitimacy,” said Rick Garnett, a Notre Dame Law School professor who clerked for then-Chief Justice William Rehnquist during the 1996-97 term.

Chief Justice John Roberts said Tuesday he has asked the Supreme Court’s marshal to investigate the source of the leak. The court confirmed the authenticity of the draft opinion but said it doesn’t represent a final ruling or reflect anyone’s definitive position in the case.

“To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said in a statement. “The work of the court will not be affected in any way.” He added, “This was a singular and egregious breach of that trust that is an affront to the court and the community of public servants who work here.”

A ruling overturning Roe would come less than two years after Justice Ruth Bader Ginsburg’s death just before the 2020 election allowed then-President Donald Trump to transform the court’s balance by selecting Amy Coney Barrett to fill the vacancy. Trump’s three Supreme Court appointments -- including one to fill a seat Senate Republicans held open during the last 11 months of Barack Obama’s presidency -- gave the court a 6-3 conservative majority.

LISTEN: Tina Davis, Bloomberg Legal Executive Editor, discusses a leak of a Supreme Court draft opinion overturning the Roe v. Wade abortion-rights ruling. She spoke with host Ed Baxter on Bloomberg Radio.

Past Leaks

Politico said it got its information, which included the preliminary votes of four other Republican-appointed justices to overturn Roe, from “a person familiar with the court’s deliberations.”

That description could potentially describe any of the 37 law clerks working at the court this term, a smaller number of staff assistants in the justices’ chambers, or a handful of other court employees. It might also cover spouses to the extent the justices reveal confidential information at home.

“For a draft opinion to be shared with the public is truly extraordinary,” said Allison Orr Larsen, a professor who directs the Institute of the Bill of Rights Law at William & Mary Law School. “What comes next is anyone’s guess, but I am confident that everyone in the Supreme Court building is rattled this morning.”

Leaks about internal deliberations have occurred in the past, though on a smaller scale. Time magazine reported the results of Roe v. Wade hours before the ruling was scheduled to be issued in January 1973, though without publishing the full opinion.

The disclosure prompted then-Chief Justice Warren Burger to demand his colleagues question their law clerks, and he threatened to call in the FBI to administer lie-detector tests, according to Bob Woodward and Scott Armstrong’s landmark book, “The Brethren.” A law clerk for Justice Lewis Powell eventually told Burger he had inadvertently disclosed the outcome to a reporter in advance while trying to provide background information, according to the book.

More recently, several conservative media outlets have hinted at inside information about the internal wrangling in pending cases over the Affordable Care Act and LGBTQ rights.

Other leaks have occurred after-the-fact. In 2004, Vanity Fair detailed the internal deliberations that produced the 2000 Bush v. Gore ruling, which sealed George W. Bush’s election as president. In 2020, CNN reporter Joan Biskupic exposed some of the court’s internal maneuvering in its just-completed term.

Pointing Blame

Still, nothing in the court’s modern history has reached the level of the new leak in Dobbs v. Jackson Women’s Health Organization, a case that centers on a Mississippi law that would ban abortion after 15 weeks of pregnancy. Alito’s opinion, which spanned 67 pages plus two appendices, said that Roe’s “reasoning was exceptionally weak” and that the ruling had only “enflamed debate and deepened division.”

Conservatives were quick to blame abortion-rights supporters for the leak. Senate Minority Leader Mitch McConnell, a Republican from Kentucky, said that “by every indication, this was yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”

McConnell said the Justice Department should pursue criminal charges if applicable, though it wasn’t immediately clear what crime might have been committed.

But others speculated the leak might have come from the conservative wing, as part of an effort to ensure that potential swing justices -- Barrett and Trump-appointed Justice Brett Kavanaugh -- don’t switch sides and vote to keep Roe intact.

Justices Clarence Thomas and Neil Gorsuch also voted to overturn Roe when the court discussed the case in a private conference in December just after the argument, Politico said.

“My hypothesis is that this is was leaked from the right in an attempt to prevent defectors from the absolutism of the draft,” tweeted Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at a Chicago-Kent College of Law.

Either way, the impact on the court as an institution is likely to be profound and long-lasting.

Read More: Fetal Viability and the Fate of Abortion Laws in U.S.

(Updates with reference to private conference among justices. An earlier version corrected the title for Mitch McConnell.)

--With assistance from Steven T. Dennis and Justin Sink.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

© 2022 Bloomberg L.P. All rights reserved. Used with permission.

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