The Leak of a Draft Abortion Ruling Will Subject the Court to Mob Rule — Which Might Have Been Its Purpose

We don’t yet know the motives of the leaker to Politico of what it reckons is the first draft of Justice Alito’s majority opinion overturning Roe v. Wade. It’s not too soon, though, to suggest that the leak will tilt the scales of justice towards mob rule for decades if there aren’t consequences for the leaker’s actions.You could count the number of leaks from the Supreme Court on your hands; until now, they’ve always been small, such as the one on Roe in 1972 which contained no quotes or specifics of internal deliberations.Politico itself reported, “Court watchers can’t recall a previous time when a draft opinion was publicly disclosed before a decision.” As recently as 2012, Justice Antonin Scalia was so confident in the court’s tight lips, that he dismissed reported leaks out of hand.“You shouldn’t believe this stuff that you read in the press” about the court’s inner workings, Justice Scalia told NPR. “It’s either made up or comes from an unreliable source.”In a 2017 Washington Post column, Stephen L. Carter echoed those sentiments, describing the high court as the “last leak-proof institution,” and saying that as a clerk for Justice Thurgood Marshall, he was “angry and offended” when reporters pressed for information.He suspected “most of those who work at the courthouse would have the same response … to give information to the outsider would be a blasphemy.” He concluded that “privacy is essential to the court’s work.”Yet it looks to me as if someone decided to intimidate the justices through the press, to destroy the calm at the eye of Washington’s political storms — a refuge the framers created to ensure that the Constitution, not gusts of opinion, guided our ship of state.Justice Felix Frankfurter explained it this way: “The secrecy that envelops the court’s work is not due to love of secrecy or want of responsible regard for the claims of a democratic society to know how it is governed.“That the Supreme Court should not be amenable to the forces of publicity to which the executive and the Congress are subjected is essential to the effective functioning of the court.”For this reason, we have, until now, always associated leaks — said to be the currency in Washington — with those other two branches of government, messy in their machinations.Supreme Court justices must be free of such influences, which is why we appoint them for life — and why the FBI should pursue this leaker as hard as we do others.Mr. Obama’s Department of Justice cracked down so severely on those who’d spread secrets, that the New York Times said he was “threatening fundamental freedoms of the press to gather news.”Congress has been tough on leakers even in its own ranks. In 1987, Senator Patrick Leahy, Democrat of Vermont, was driven to resign as ranking member on the Intelligence Committee for slipping intel to a reporter.The leak to Politico could shatter the court’s aura, causing finger pointing and suspicion to corrode the very independence and sober mindedness we expect from the men and women inside those black robes.The only branch of government without cameras, now has a spy. All possibilities are on the docket now, no conspiracy theory too outlandish for Twitter or cable news. Did one of the justices leak the report to torpedo the ruling? We need a name, so we don’t tarnish innocent parties or stoke speculation based on ghosts.The issue of returning abortion to the states and the people will sort itself out, but the damage done by politicizing the court will echo through our legal system for decades.

The Leak of a Draft Abortion Ruling Will Subject the Court to Mob Rule — Which Might Have Been Its Purpose

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