Supreme Court Leak Raises Questions About Motives, Methods, and Legitimacy

Strategic Insights -

The recent leak of a draft majority opinion overruling Roe v. Wade has set off a firestorm of debate about the motivations, methods, and implications of the Supreme Court's internal workings. The revelation has sparked concerns about the court's ability to function in an orderly way and has raised questions about the legitimacy of its decision-making process. At the heart of the controversy is the question of who benefits from the leak and whether it is a deliberate attempt to influence the outcome of the case.

Key Takeaways:

  • The leaked draft opinion, written by Justice Samuel A. Alito Jr., indicates that five justices (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) voted to overrule Roe v. Wade, with the majority opinion assigned to Justice Alito after a private meeting in December.
  • The leak has sparked concerns about the court's ability to function in an orderly way, with Justice Sonia Sotomayor questioning whether the institution will survive the "stench" of the leak in the public perception.
  • The leak may have been intended to lock in the five-justice conservative majority, as it would have been difficult for a defector to change their vote after the leak made their position more costly.
  • The leak has also diverted attention away from the potential illegitimacy of overturning longstanding precedent allowing reproductive choice, as noted by law professor Richard L. Hasen.
  • The court's actual decision is not likely to land until late June, and Justice Alito may worry that Chief Justice Roberts could threaten his majority.
  • The leak has raised questions about the court's secrecy measures, with some arguing that the court has inherent power to protect the confidentiality of its internal operations.

Statistics:

  • 1973: The year Roe v. Wade was established as a constitutional right to abortion.
  • 15 weeks: The gestational limit set by Mississippi's abortion ban, which is opposed to Roe and Casey.
  • 23 weeks: The current viability of a fetus, meaning that Mississippi's 15-week law is flatly at odds with Roe and Casey.
  • 5 justices: The number of justices who voted to overrule Roe v. Wade, as indicated by the leaked draft opinion.
  • 6 justices: The total number of justices on the Supreme Court.
  • 1973-1992: The period during which Roe v. Wade and Casey were reaffirmed as constitutional precedent.

Sources:

  • "The New York Times: Supreme Court Leaks Raise Questions About Motives, Methods, and Legitimacy" [available at](https://www.nytimes.com/2022/05/05/us/supreme-court-leak-motives-methods-legitimacy.html)
  • "Politico: Supreme Court Leak Suggests Possible Conservative Majority in Roe v. Wade Case" [available at](https://www.politico.com/news/2022/05/04/supreme-court-leak-roe-v-wade-00011333)
  • "The Wall Street Journal: The Leaker's Goal May Have Been to Lock in the Conservative Majority" [available at](https://www.wsj.com/articles/the-leakers-goal-may-have-been-to-lock-in-the-conservative-majority-11651956522)