It’s an unprecedented leak with an unprecedented aim — and Supreme Court Chief Justice John Roberts is taking unprecedented steps to get to the bottom of it.
In a media release Tuesday, one day after Politico first published a draft opinion from the court that indicated it would overturn Roe v. Wade, Roberts announced he had “directed the Marshal of the Court to launch an investigation into the source of the leak.”
(Here at The Western Journal, we’re staying on top of the fast-moving news regarding the Supreme Court’s biggest abortion case since Roe was decided — and what the leak means for the future of the court. If you support our news and analysis from a conservative, Christian perspective, please consider subscribing.)
The draft decision in Dobbs v. Jackson Women’s Health Organization, written by Justice Samuel Alito and joined by four other conservative justices, held the logic of the original Roe v. Wade decision was “extremely weak” and said the decision “was egregiously wrong from the start.” The ruling also attacked another abortion case — 1992’s Planned Parenthood v. Casey, which established the “undue burden” standard for abortion laws.
“We hold that Roe and Casey must be overruled,” Alito wrote. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Even as Politico published the draft opinion, reporter Josh Gerstein acknowledged the breach that it represented:
“No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term,” he wrote.
In the media release, the Supreme Court acknowledged the authenticity of the draft opinion while stressing it was in no way final.
“Yesterday, a news organization published a copy of a draft opinion in a pending case,” the release stated.
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“Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.”
In a release, Chief Justice John Roberts stated the matter would go directly to the Marshal of the Supreme Court, a law enforcement official that answers directly to the court.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts wrote.
“The work of the Court will not be affected in any way.
“We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law,” the statement continued.
“Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. 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.
“I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
— Shannon Bream (@ShannonBream) May 3, 2022
The current Marshal of the Supreme Court is Col. Gail A. Curley, according to Fox News, who was appointed in May of 2021.
“As Marshal, Col. Curley will serve as the Court’s chief security officer, facilities administrator, and contracting executive, managing approximately 260 employees, including the Supreme Court Police Force, which provides security for the Justices, Court staff, visitors, the building, and surrounding grounds,” the Supreme Court stated in a media release when she was appointed last year.
“Col. Curley will call the Supreme Court to order in argument sessions, maintaining order and decorum during Court proceedings.”
And now, she’ll be charged with figuring out who leaked Alito’s draft opinion.
It’s unclear what other organizations will be involved in the investigation, although CBS News’ Jan Crawford reported it would “likely” involve the FBI.
Chief Justice Roberts is likely to order a full investigation involving the FBI into the reported leak of a draft majority opinion, reports @JanCBS — as some question if it will throw the Supreme Court’s legitimacy into question. pic.twitter.com/rJsIlQqjEU
— CBS Mornings (@CBSMornings) May 3, 2022
According to Reuters, experts say that leaking draft opinions isn’t illegal in and of itself, given that they aren’t classified documents. However, the leaker may have committed an ancillary crime to obtain the opinion, like unauthorized use of a computer to obtain the file.
It could also lead to disbarment for the individual who leaked the document, if he or she is a practicing lawyer.
“This is the most egregious violation of confidentiality for a staff member or employee of the court that you can imagine,” University of California, Berkeley, law professor Orin Kerr told Reuters.
The leak appears to have been designed to put pressure on both the Supreme Court and/or Congress to somehow change the decision, either by swaying votes on the court or getting the Senate to pass a bill that would codify Roe v. Wade guarantee of abortion rights at the federal level.
What’s more, that pressure has come via mobs that resemble nothing so much as the “fiery but mostly peaceful” protests of 2020:
Pro-abortion protestors smash windows tonight in Los Angeles: pic.twitter.com/HwGyOqGd0Z
— Libs of TikTok (@libsoftiktok) May 4, 2022
Crowd of protesters is growing quickly, and pushing toward the barricade that the handful of guards put up earlier tonight. Chants of “fascist scum have got to go,” interspersed with the names of the conservative justices pic.twitter.com/2OHtE2pLuy
— Nate Hochman (@njhochman) May 3, 2022
Constitutional scholar and George Washington University law professor Jonathan Turley wrote in a Twitter post that the leak represents “the greatest crisis that Chief Justice John Roberts has faced in his tenure on the Court.”
…If this is a true copy of the draft opinion it is hard not to view this as a malicious act. What is the motivation of releasing such a decision? The only intent of such a leak is to trigger a response from outside of the Court.
— Jonathan Turley (@JonathanTurley) May 3, 2022
“If this is a true copy of the draft opinion it is hard not to view this as a malicious act. What is the motivation of releasing such a decision? The only intent of such a leak is to trigger a response from outside of the Court,” he tweeted. “It is a breach of the most fundamental obligations and traditions of the Court.”
It’s a breach that, one hopes, will mended from the inside — if only to preserve whatever integrity remains in the court’s decision-making process.