The bombshell exploded shortly before 9 p.m. ET on Monday, after Politico obtained a leaked draft ruling, written by conservative Supreme Court Justice Samuel Alito, that would end federal abortion rights. Such a ruling would return deciding the legality of abortion to the state level.
Leaks are as common in Washington as Congress spending borrowed money it can’t pay back. But the Supreme Court has almost always been shielded from the weaponization of leaks. It is an institution that, until recently, had been regarded more highly by Americans than almost every other, save for the military and medical professionals.
The extent of the damage to the public’s trust of the high court, as well as trust among the Court’s clerks and justices, will be significant. SCOTUSBlog, an independent and influential news source on the Court, wrote to its more than 550,000 followers: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
Chief Justice John Roberts echoed that sentiment on Tuesday, stating: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.”
So, why leak such an explosive document? The reasons are two-fold.
The first is to energize Democrats ahead of the November midterm elections, now fewer than 190 days away. The draft opinion is a seven-alarm fire to hardcore Democratic voters who were thoroughly depressed leading up to this moment, with skyrocketing inflation, gas prices and crime and a president at 33 percent approval — all spelling doom for the party in power in the House and likely in the Senate, if history is any indicator.
Since 1870, just four midterm elections out of 38 have seen the party controlling the White House either gain seats or lose fewer than five. For Democrats to keep control of the House this time around, they can afford to lose only four seats.
For context, in President Obama’s first term, he lost 63 seats despite having a higher approval rating than the current president. As for the Senate, Republicans need a net-gain of just one seat to control that chamber as well.
Perhaps in order to keep party energy high, some influential media members on the left already are pushing “if/then” scenarios that are an exercise in hyperbole. MSNBC’s Rachel Maddow, for example, declared Monday night that if a Republican takes the White House in 2024, the party and its president will push to ban abortion nationwide. There’s no evidence that this is being considered by Senate Republican Leader Mitch McConnell (R-Ky.) or by GOP House leaders, or even by rightwing commentators — but that’s the game plan predicted by the most-watched liberal in cable news. Fear is the greatest motivator.
On CNN, chief legal analyst Jeffrey Toobin said that Republicans will look next to end gay marriage. Again, there has been no discussion of this by the GOP’s rank-and-file, and certainly not by the GOP leadership.
The second likely reason this draft opinion was leaked was to intimidate the Court’s conservative justices into reversing their decisions.
“This is just so outrageous that this draft opinion was leaked,” Rep. Michael Waltz (R-Fla.) told Fox News on Tuesday. “It’s clearly an attempt to influence the outcome. But be prepared for the scorched-earth tactics of the left on this issue.”
When President Obama and then-Vice President Biden took office in 2009, the Supreme Court had a 61 percent approval rating, with just 28 percent disapproval. Thanks to profoundly partisan and heated congressional hearings – particularly as they pertained to two of President Trump’s Court nominees, Brett Kavanaugh and Amy Coney Barrett – that number has dropped to just 40 percent approval and 53 percent disapproval, with respondents citing the politicization of the Court as the overwhelming reason why.
The end game here seems to be to blow up the Senate filibuster rules. Leading that effort is “The Squad” wing of the party and its patriarch, Sen. Bernie Sanders (I-Vt.)
“Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes,” Sanders tweeted Monday after the report broke.
“Abolish the filibuster. Codify Roe. Expand the Supreme Court. Protect abortion rights by any means necessary. We need all of the above. This is an emergency,” Rep. Cori Bush (D-Mo.) also tweeted.
Expand the Supreme Court. Nine justices, 19 justices — who cares? Because this is an emergency, according to Rep. Bush.
At least for this week and possibly throughout May, you’re going to see plenty of debate around abortion rights, the rights of the unborn, the filibuster, expanding the Supreme Court and so on.
Lost in all of it will be how the public feels about the primary topic: abortion. Gallup has found this issue to be incredibly even on both sides in recent years. In 2018, the country was split — 48 percent pro-life, 48 percent pro-choice; in 2021, the number had moved only one point, 49 percent pro-choice, 47 percent pro-life, with just 32 percent saying abortion should be legal under any circumstances.
When asking the following question in a recent Marist poll – Do you want some restrictions on abortion? – the numbers also prove to be nuanced: 71 percent of all adults say yes, including 93 percent of Republicans and nearly half of all Democrats. Don’t expect to see those numbers shared too much in the media, however.
The November midterms just got their “October surprise” in May. A leaker inside the Supreme Court made sure of that. It follows the leak of Justice Stephen Breyer’s retirement a few months ago.
Before these leaks, almost nothing of significance ever got out of the Court as a leak. Former Bush White House press secretary Ari Fleischer called this leak “an insurrection against the Supreme Court.”
“I’ve already seen people on the left celebrating this leaker, calling him brave, trying to throw a ‘Hail Mary’ to stop the ruling from being issued,” Fleischer told Fox News on Monday night. “Who at the Supreme Court will trust each other now if they know that their drafts are going to be leaked, just like everything else in Washington?”
The high court used to be revered. It also used to be leak-free. But like everything else in Washington, some inside it are pulling it into a swamp from which it may never escape.
Joe Concha is a media and politics columnist.