Court in Crisis as Roberts Confirms Authenticity of Leaked Draft Opinion Overturning Roe

For a famously taciturn institution like the Supreme Court, where secrets are guarded assiduously and deliberations rarely see the light of day, the wholesale disclosure of a draft opinion signals a different era. 

AP/Timothy D. Easley, file
Chief Justice Roberts in 2017. AP/Timothy D. Easley, file

The Constitution instructs that “the judicial Power of the United States, shall be vested in one supreme Court.” That court, and the judicial system it oversees and the political one it checks, is in crisis following the leak of a draft opinion overturning Roe v. Wade.   

In the immediate term, this development could hand Democrats a political lifeline at just the moment their fortunes appear stubbornly dire. In a season of inflation, cresting illegal immigration, and a looming recession, the leak of the draft opinion struck America like a thunderbolt. 

For a famously taciturn institution like the Supreme Court, where secrets are guarded assiduously and deliberations rarely see the light of day, the wholesale disclosure of a draft opinion signals a different era. 

Chief Justice Roberts acknowledged as much Tuesday morning, when he released a statement confirming the authenticity of the draft opinion and condemning “this betrayal of the confidences of the Court” and labeling it a “singular and egregious breach of that trust.” 

The chief also “directed the Marshal of the Court to launch an investigation into the source of the leak,” portending a high-profile investigation that holds the potential for further disclosures and disruption. 

The current marshal is Gail Curley, an army veteran who previously served as chief of the National Security Law Division in the office of the Judge Advocate General. 

While leaks are not unheard of when it comes to the decisions handed down by the Nine, the promulgation of a draft opinion labeled “opinion of the court” — indicating that it has garnered the support of a majority of the justices — is a difference not only of degree, but of kind.   

Court watchers are hardly waiting for the marshal’s work to begin. Speculation has turned to clerks, recent law school graduates who assist the justices in researching and writing their opinions. Each associate justice is allotted four of them, with the chief justice employing five. 

All clerks are required to sign a confidentiality agreement before they begin their position. An article titled “Law Clerks and Their Influence at the US Supreme Court,” published in the journal Law & Social Inquiry,  notes that “the Court is so secretive about its procedures that it has refused to reveal to the public the written code of conduct that law clerks must follow.”

Writing at National Law Journal, Tony Mauro tells of how he purchased the Code of Conduct for Supreme Court clerks at an estate sale for Justice Harry Blackmun, and cites its dictum that “the relationship between justice and law clerk is essentially a confidential one.”

The Code goes on to explain that “the law clerk should take particular care that court documents not available to the public are not taken from the court building or handled so as to compromise their confidentiality within chambers or the court building in general.” 

Given the stakes involved, theories have bloomed purporting to explain what manner of ideological commitment would precipitate such a step, one that frontally attacks rules both written and unwritten.  

Those who see the hand of the ideological left point out that clerks are overwhelmingly drawn from bastions of elite legal education and that ideological sea changes on campus, including around constitutional issues, could now be washing ashore at the court itself.

Others perceive a stratagem by those who support the toppling of Roe to lock in the current majority’s support for doing just that in light of hesitations toward overruling precedent on the part of Chief Justice’s Roberts that surfaced in another abortion case, this one centered in Texas. 

Writing in the minority, the chief justice quoted language from a 1809 case that read, “if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgment, the constitution itself becomes a solemn mockery.”

The court had already been struggling to maintain its stature at the heart of a roiling political environment. As the Sun reported, a hearing of the House Judiciary Committee last week raised the specters of recusal and impeachment in relation to the political activities of Justice Clarence Thomas’s wife, Virginia. 

A Pew poll earlier this year found that the court’s favorability ratings had tumbled 15 percent points in just the last three years. That decline has been most pronounced among liberal Democrats. That trend is poised to accelerate: ​​As news of the leak spread last night, crowds gathered outside the court and, toward the empty building, chanted “fascist scum have got to go.”

In the Senate, the breakdown at the court has occasioned proposals that aim to reshape that body. Senator Sanders tweeted a call for that body to codify “Roe v. Wade as the law of the land in this country NOW.” In the event that fails, he asserted, “we must end the filibuster to pass it with 50 votes.”

That demand to ditch the filibuster was echoed by Senate candidate Timothy Ryan and Pennsylvania gubernatorial contender John Fetterman, suggesting that the white whale of majority rule at the Senate has gained new life.

Less focused on the substance of the opinion than the manner in which it came to light, the Senate’s minority leader, Mitch McConnell, declaimed from the floor of that chamber that “this lawless action should be investigated and punished to the fullest extent possible, the fullest extent possible.”

With a marshal hunting a leak, a roiled public, and a reeling court, the question of what is possible is more open than it was 24 hours ago.


The New York Sun

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