Supreme Court’s Roe v. Wade leak: The end of integrity and ethics?

Five seemingly perfunctory words from the Supreme Court — “The Court has no comment” — hit like a thunderclap late Monday night. Politico had just posted what it claimed to be the working draft of a majority opinion overturning Roe v. Wade and its progeny in the blockbuster abortion case of Dobbs v. Jackson Women’s Health Organization. 

Most court observers surely must have hoped this was an elaborate hoax, that someone had not shattered every legal and judicial ethical rule by leaking a draft opinion. But there was no denial from the court.

Even if this is truly the current draft opinion, it is subject to change and may indeed have already changed in both its analysis and support. Draft majority opinions have a nasty habit of becoming dissents or fracturing into pieces as justices work through the details on a case.

The opinion apparently was written by Associate Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. If unchanged, it would declare that “Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Such a ruling would return the question of reproductive rights to the states. Most would likely continue to support the right, but it would become a matter for each state to resolve through their own democratic process.

The indeterminacy of the draft and uncertainty of the future did not stop instant, dystopian predictions. Rep. Jamie Raskin (D-Md.) immediately declared: “So, this would appear to be an invitation to have, you know, Handmaid’s Tale type anti-feminist regulation and legislation all over the country.”

The final language and meaning of the decision is literally yet to be written. What is clear is that the court itself has been hit with one of the greatest scandals in its history, and certainly the greatest crisis faced by Chief Justice John Roberts in his tenure.

Even in a city that traffics in leaks from every agency and every corner of government, this was an unspeakably unethical act. The Supreme Court deals with transformative cases that drive to the very heart of our political, cultural and religious divisions, yet justices and clerks have maintained a tradition of strict civility and confidentiality on such drafts.

So what changed?

We changed.

We do not know what motivated this leaker other than to unleash a public and political firestorm. The assumption is that the individual wanted to pressure the court to reconsider its purported path, and to push Congress to pass pending legislation to codify Roe. Yet, this act is such an attack on the very foundation of the court that it is dangerous to assume a specific motivation other than disruption.

What is clear is that the court has become a tragic anachronism in our age of rage: an institution that relied on the integrity and ethics of its members and staff at a time when such values are treated as naive. It relied on justices and clerks alike remaining bound to the institution and to each other by a constitutional faith.

But we are living in an age of constitutional atheism, so it is only surprising that it took this long. For years, politicians, pundits and academics have called for reckless political action against the court.

Many Democrats in Congress have pledged to achieve political goals “by any means necessary,” including packing or gutting the court. Democratic leaders have hammered away at the court and its members, demanding that the court adhere to political demands or face institutional disaster. The threats have grown increasingly raw and reckless as politicians sought to outdo each other in their attacks. In the age of rage, restraint is a lethal liability.

The message has been repeated like a drumbeat: The ends justify the means.

Recently, Roberts even went public with a warning over “inappropriate political influence” affecting the court. Yet, the day before this leak, the court itself defied critics who portrayed it as hopelessly and dysfunctionally divided with another unanimous decision. It ruled in a major case on speech that Boston could not discriminate against a religious organization that wanted to hoist a flag outside of its city hall. It spoke with one voice in defense of shared constitutional values.

Given the relentless calls from political leaders, we may have been naive to think that a staff member or clerk would not yield to the same “ends justify the means” rationale. Former Justice Louis Brandeis once warned that “Our government … teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

With our leaders continually expressing utter contempt for the court and its traditions, it is hardly surprising that such traditions lose meaning for some working in the court itself. That did not happen overnight, and it really cannot be dismissed as the act of a single rogue employee. It was a collective effort by those who bred contempt for our legal institutions and values. This is not a crisis of the court. It is a crisis of faith.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.