Roe v. Wade leak deals major blow to Supreme Court’s image

The leak of a Supreme Court draft opinion striking down Roe v. Wade is one of the most stunning breaches of secrecy in the court’s history, almost certain to sow distrust among the justices and further damage the court’s already tarnished reputation.

As Americans reckoned on Tuesday with the likelihood that the court in coming months would reject the constitutional right to abortion, a separate set of questions swirled over how this extraordinary window into the court’s notoriously opaque inner workings was pried opened. 

“It’s crazy,” said Steven D. Schwinn, a professor at the University of Illinois Chicago Law School and longtime court watcher. “It’s hard to overstate how significant this is.”

If it becomes law, the draft opinion, authored by conservative Justice Samuel Alito, would upend federal protections that for nearly five decades have safeguarded abortion access. In their place, states would be handed full authority to restrict or even outlaw the procedure entirely.

The court on Tuesday confirmed the authenticity of the document published Monday evening by Politico, but cautioned that justices’ votes and the opinion itself are subject to change before a final decision is published, which is expected by late June.

Chief Justice John Roberts, in a statement, said he had directed the marshal of the Supreme Court to launch an investigation into the source of a leak.

“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said.

Carter Phillips, a partner at Sidley Austin who has argued dozens of cases before the Supreme Court, called the leak “appalling and reprehensible.”

“This has to create an environment of distrust among the justices and between the justices and the law clerks at least until the Court figures out who is the source,” said Phillips, a former clerk of then-Chief Justice Warren Burger. “That is not a helpful situation, particularly as the Court approaches the final stages of the Term.” 

“I do not doubt that Roberts will take whatever action is necessary to find out who did this,” he added.

The reaction among lawmakers largely divided along partisan lines, with Republicans appearing far more concerned with the circumstances surrounding the extraordinary disclosure than its contents.

“This lawless action should be investigated and punished to the fullest extent possible, the fullest extent possible,” Senate Minority Leader Mitch McConnell (R-Ky.) said during a floor speech Tuesday, adding that, “If a crime was committed, the Department of Justice must pursue it completely.”

Some legal experts doubted, however, that the breach could constitute a criminal act.

“A full investigation conducted by the Court itself is more than warranted. The leaker without question committed a fireable offense,” said Bradley Moss, a national security lawyer and partner in the Law Office of Mark S. Zaid. “The idea of a criminal inquiry is far more attenuated.”

Moss said the only plausible grounds for a federal criminal prosecution would be under a statute that outlaws theft. But he added that the Justice Department has shied away from pursuing cases involving leaks of information that the public has an interest in knowing.

“That’s more than enough to give the FBI a predicate to investigate, but it’s a very fine line they’d be walking,” he said.

Democrats, for their part, mostly trained their fire on the prospect of the conservative-majority court soon eliminating the right to terminate an unwanted pregnancy. 

The ruling stems from a dispute over Mississippi’s 15-week abortion ban, which directly conflicts with Roe’s prohibition on states banning abortion prior to fetal viability, around 23 weeks. 

If the court follows through on striking down Roe in coming months, it would send political shockwaves through the country ahead of the November midterm elections. According to a December poll by Harvard CAPS-Harris, a majority of Americans — 54 percent — said they oppose overturning Roe v. Wade.

The 2018 Mississippi law at issue in the case, which has been paused during litigation, is just one of hundreds of abortion measures that state legislatures passed in recent years.

According to the abortion rights advocacy group Guttmacher Institute, 22 states would be certain to attempt to ban abortion as quickly as possible. Among those, 13 have trigger laws already in place, designed to take effect automatically or by quick state action if Roe no longer applies.

Meanwhile, the leak itself is seen as likely to batter an institution whose perception among the public has recently fallen to historic lows, experts said.

“It exacerbates the declining respect that Americans have for the court,” said Carl Tobias, a law professor at the University of Richmond. “This cannot be good for its relationship with the public.”