Remember when the Supreme Court sprung a leak? The disclosure, by Josh Gerstein and Alexander Ward of Politico, of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health, sprung a thousand think pieces. Justices fumed. Like Athena sprung from Zeus’s head, nothing quite like a draft opinion, full and complete, had ever been seen before. The Chief Justice labeled the leak “egregious.” The Press itself was outraged.In the aftermath of the final decision in Dobbs, though, we wonder whether the better part of valor for the court would be to let bygones be bygones and move on. Our big concern at the time was whether the leak would scare the court off Justice Alito’s full bore rejection of, in Roe v. Wade, a precedent that we have long felt was fatally flawed and that, in any event, had failed over 50 years to put an end to the abortion wars.The Chief Justice assured the public that the court decision would not be affected. In the event, the court stuck to Justice Alito’s guns. The only ill-effect was a sense of paranoia within the court. No doubt trust was destroyed, to a degree, among the members and staff of the court, as remarked upon by Justice Clarence Thomas. Yet that, we’d like to think, will heal with time, even without waiting for a new generation of judges to be seated on the bench.No one, meantime, has made clear whether the leak is proscribed in law. A draft opinion is not classified in the military sense. This is not Julian Assange disclosing battlefield reports while troops are in the field. “No statute gives this court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records,” the Times quoted Chief Justice Burger as having once written.Since the leak, radio silence. The Associated Press reports that “The Supreme Court won’t say whether it’s still investigating,” nor “whether the leaker has been identified or whether anyone has been disciplined.” Additional unanswered questions include “whether an outside law firm or the FBI has been called in” and “whether the court will ever offer an accounting of what transpired.” The official word is “The Court has no comment.”With each passing day, it becomes more difficult, at least for us, to see that this crime would fit the sought-after punishment. Senator McConnell has thundered that the “lawless action” should be “punished to the fullest extent possible.” But why? Justice Alito held, legislatures can act, Dobbs is now the law of the land, Roe is not, and the leak is a footnote. Say, what was the name of that guy who turned out to be Deep Throat? A little bit of mystery, and a concomitant amount of plausible deniability, is not the worst thing in a republic whose ironclad sense of certainty is rusting ’round the rivets. There are working theories that the leaker was of the right or the left, a justice or a clerk or a secretary or janitor, a proponent or a foe of abortion. We have no idea. Nor do we intend to suborn leaking, or to encourage trial by public opinion.It could be, however, that a heavy-handed response to the leak could create its own dangerous whirlpools downstream. We recall, as we often do, Justice Robert Jackson’s warning that “the citizen’s safety lies in the prosecutor who tempers zeal with human kindness.” The justices of the high court have plenty to do in adumbrating the national parchment. Do they want Article Two prosecutors poking around the innards of the Third Branch?
