A draft, a leak and an inflection point in Supreme Court history

Supreme Court Justice Samuel Alito, in a draft opinion leaked to Politico deciding the Mississippi abortion case, held that Roe v. Wade was “egregiously wrong from the start.” Lawyers and judges are fond of the word egregious. In a press release, Chief Justice John Roberts called the leak a “singular and egregious breach of…trust that is an affront to the Court.” Roberts wants an investigation that might expose who did it.

Who leaked it? Who did it? A clerk, a secretary of one of the justices? A janitor? Or a disgruntled justice him or herself?

And what did the leaker hope to accomplish? Who is the latter-day Daniel Ellsberg? A liberal who concluded that premature disclosure of Alito’s draft might spur a public outcry that would undercut the decision? Or a conservative who, sensing that some of the majority justices might go wobbly after seeing such an unconvincing opinion in print, would be more dug in since it was all out there?

More likely, the objective was to rally public support against the decision, which would undermine its legitimacy. In either event, the leak has sparked renewed public debate over abortion.

Leaks are always troublesome, although they may be in the public interest. They are more common in the political branches of government than in the Supreme Court. Daniel Ellsberg leaked the Pentagon Papers to the New York Times and the Washington Post. The Supreme Court in 1971 upheld the First Amendment right of the news organizations to publish the papers, brushing aside a claim of the government that the disclosure might affect national security.

In the Pentagon Papers case, Justice Hugo Black had said that: “In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.”

There may be constitutional protection for Politico on this one, but the leaker is another story. Roberts directed the court’s marshal to investigate the matter and presumably find the leaker, who, if apprehended, may face serious penalties.

Roberts in his statement conceded that the leaked document was authentic. He cautioned, however, that: “it does not represent a decision by the Court or the final position of any member on the issues in the case,” and vowed that the “work of the Court will not be affected in any way.” This could easily imply that the draft opinion, already printed up, is in its final stages and will become the opinion of the court after it is tweaked, proofread and cite-checked. Or maybe there will be a brand-new opinion that might serve the public better with a better result than that foreshadowed by the draft.

If the Alito draft stands as the opinion of the court, the court’s position as a court of law will be irretrievably damaged. The case will rank with Dred Scott and the Japanese internment cases as the greatest betrayals of “equal justice under law” in the court’s history.

Courts are supposed to respect their prior decisions. This is what lawyers call stare decisis, the doctrine that judges should stand by their decisions. Roe v. Wade is not only a precedent; the late Sen. Arlen Specter (D-Pa.) during Roberts’s 2005 confirmation hearing called it a “super duper precedent.” The conservative justices who are poised to overrule Roe assured the Senate Judiciary Committee in their confirmation hearings that they would follow precedent. Did conservative justices such as Neil Gorsuch and Brett Kavanaugh flat-out lie to Sen. Susan Collins (R-Maine) and other members of the Senate?

Senate Majority leader Chuck Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.) issued a joint statement accusing “several” conservative justices on the Supreme Court of having “lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation.” 

Stare decisis is an important tool used by the judiciary to sidestep the suspicion that they are essentially politicians. More than a century ago, the humorist Finley Peter Dunne quipped that: the “Supreme Court follows the election returns.” The public has little respect for court decisions if they are viewed as partisan, and the justices know it.

The court gains its legitimacy when it follows the law. When courts stand by their decisions, the public may disagree with the outcome, but they are more likely to accept the disposition at the end of the day.

Kavanaugh at oral argument in the Mississippi abortion case mused that, stare decisis notwithstanding, there is a Supreme Court history of overruling cases, and cited Brown v Board (desegregating public schools) Baker v. Carr (the apportionment case one man [woman]/one vote), West Coast Hotel (states can regulate business), Miranda v. Arizona (requiring police to give prisoners warnings of their basic constitutional rights), Lawrence v. Texas (state may not prohibit homosexual acts between consenting adults), Mapp v. Ohio (excluded evidence unconstitutionally obtained), Gideon v. Wainwright (guaranteed right to counsel in criminal cases to impecunious defendants, and Obergefell (constitutional right to same-sex marriage).

Absent this history, Kavanaugh, stated from the bench, the country would be a “much different place.” But Kavanaugh ignored that the court in those cases overruled precedent to recognize fundamental rights that were previously denied. Here, they are proceeding to deny fundamental rights that were previously recognized.

Polls show that 80 percent of Americans support the right to abortion in at least some circumstances. The Alito draft seeks to send the abortion question back to each state to decide, positing that this is a matter for the people’s elected representatives. It isn’t clear from the polls how many Americans would agree with Alito on this.

Still, by a two-to one margin, Americans in recent polling want the Court to uphold Roe v. Wade. And Roe, if it means anything, means that a woman’s right to choose what happens to her own body, within a certain framework, is a fundamental right guaranteed by the Constitution and is a uniform national rule.

Courts are not supposed to be influenced by popular sentiment. This is ingrained in the rule of law. But the public reaction to controversial Supreme Court opinions normally follows, and does not precede, the day of judgment. And the court should not be influenced by a breach of its internal processes either even if it is seen naked under the robes. Though the Alito draft is already set in type, a draft is just a draft. The uproar in and out of Congress may lead to a rethink at an inflection point in the court’s history.

And the leaker is still at large.

James D. Zirin, a former federal prosecutor in the Southern District of New York, is the author of the 2016 book, “Supremely Partisan-How Raw Politics Tips the Scales in the Supreme Court of the United States.”