A leak of an explosive draft ruling that would end women’s constitutional right to an abortion in the United States is a sign of dysfunction at the Supreme Court that will add more tarnish to an already damaged reputation, legal observers say.
The 98-page first draft, authored by Justice Samuel Alito and supported by four other judges, including all three appointees of then-president Donald Trump, was published by Politico, an online news source, on Monday night. U.S. Supreme Court Chief Justice John Roberts confirmed in a statement Tuesday that the draft is authentic, and he ordered the marshal of the court to investigate the source of the leak, calling it a “betrayal.”
The case before the court involves a 2018 Mississippi law that bans abortions after 15 weeks of pregnancy. The constitutional right to an abortion has stood since the U.S. Supreme Court’s ruling in 1973 in Roe v. Wade. The current case, called Dobbs v. Jackson Women’s Health Organization, is considered to be among the most important of the past 50 years.
Rulings may go through several drafts that are exchanged among judges and their clerks (each judge has up to four clerks, who are among the country’s top law students) in a process that can include compromise and negotiation. Some observers have speculated that a liberal clerk or court employee leaked the draft to undermine the majority opinion. Others say the leak could as plausibly have come from a conservative clerk or employee who wished to ensure that none of the five judges change their vote.
Either way, says law professor Richard Albert, it reflects the increasing politicization of the U.S. Supreme Court, and amounts to exposing the court’s work before it is final to affect the political landscape.
“You don’t do this in a mature democracy where law is treated as law. You do this in a broken democracy where law has devolved into politics,” said Prof. Albert, a Canadian who is the William Stamps Farish Professor in Law and director of constitutional studies at the University of Texas School of Law in Austin.
Ordinarily, the public accepts judgments, even those with which they disagree, if they believe judges neutrally applied the facts to the law, he said. “The implications for the integrity of the court in the near- to midterm, and perhaps the long term, are quite huge, because it suggests that someone ... has sought to undermine the work of the court.”
Renée Theriault, executive legal officer for Chief Justice Richard Wagner of the Supreme Court of Canada, said she is not aware of any similar leak having occurred on Canada’s top court.
The leak is “flabbergasting,” said Christopher Green, the James L. Whitten Chair in Law and Government at the University of Mississippi School of Law. “You could imagine this really breaking down the free flow of information among the justices. ... that could gum up the works.”
Michael McAuliffe, an adjunct professor of law at William and Mary Law School in Williamsburg, Va., said he views the leak as a sign of dysfunction at the Supreme Court.
“I do think the rule of law is under stress. I do think the breach reflects a fundamental dysfunction within the Supreme Court as it exists today, and it will result in less public respect for the work product – the decisions of the court.”
He said that the court has even suffered an “erosion of confidence” in itself. He pointed to public disagreements among the judges in a continuing dispute over the court’s “shadow docket,” which allows the judges to issue emergency orders without the benefit of oral argument, and without providing an explanation. Liberal and conservative justices have publicly bashed one another over the court’s growing use of this mechanism. Some judges have even argued publicly about the wearing of masks on the bench.
“Some of the comments have become quite sharp, almost personal,” Prof. McAuliffe said. “The ideological differences have come to the surface. I don’t necessarily think they are all partisan ideological, but they are surely deep legal and philosophical differences over what the justices’ job is on the court, and how they reach decisions.”
Those differences are clear in the draft opinion, which is from February. The conservatives on the court ask if abortion rights are rooted in the traditions and consciences of Americans, Prof. Albert says. They look to practices around the country over time, and find that in most jurisdictions and through most of U.S. history, those rights are not part of the country’s traditions or conscience. In previous rulings, the key was the protection of privacy more broadly, which allowed for social change on women’s rights to be accommodated.
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