This leak is unprecedented in nature. While the Supreme Court has been subjected to leaks before, they were only leaks of final opinions hours or days before they were announced. The ruling of the 1973 Roe v. Wade opinion itself was published a few hours before the Court announced it. This is the first time an early draft opinion has been released before a final decision was made, during deliberations. Since the conclusion of the oral Dobbs v. Jackson Women’s Health arguments in December, the plan was to announce the result of Dobbs and the decision to reverse or preserve Roe at the end of the Court’s current term, late June or early July. Waiting for the end of the term is typical practice for announcing the outcome of significant cases.
2. The leak exposes the Justices to political pressure or even violence.
Many commentators quickly concluded that the leak was intended to sabotage the Court’s process and sway the decision, instigate violent pro-abortion radicals to threaten the justices personally, or, conversely, to shock the majority justices to maintain the positions they held in February, rather than changing their minds as the final decision approaches. The leak damages the Court’s reputation in a time when some people want the court packed in accordance with political majorities. The Court itself acknowledged the possibility of attempted sabotage: “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,” Chief Justice Roberts began his statement Tuesday. To prevent influence of the leak, some have called for the formal release of the opinion as soon as possible, rather than waiting until the planned date of late June. It is possible for the majority opinion to be finalized and released before the dissent is finalized and released.
3. Chief Justice Roberts has ordered an in-house investigation.
On Tuesday, the Supreme Court issued a statement confirming that the leaked first draft of the opinion is an authentic document, intended to circulate “internally as a routine and essential part of the Court’s confidential deliberative work. Chief Justice John Roberts said he has directed the Marshal of the Court to investigate the source of the leak. The marshal oversees the Supreme Court Police, handles personal security for the justices, and ultimately answers to the Supreme Court, rather than an Attorney General or Congress. The Supreme Court Police’s findings will be helpful for internal and professional disciplinary actions, but the Marshal of the Court can only do so much. Congress or the Department of Justice can order a true investigation and provide accountability. Senate Minority Leader Mitch McConnell issued a statement Tuesday urging the DOJ to “pursue criminal charges if applicable.”
4. Too early to tell if the leak will be treated as a crime.
Whether the leak will be prosecuted as a crime will depend in part on how the draft was obtained. For a person who rightfully had access to the draft to hand it over to the press might be simply a breach of ethics and tradition, but if it was obtained through a hack or theft, it could be a different story. Additionally, some say that the draft is government property, and misuse of government property and records is against Federal law. Some possible charges could be obstruction of justice, or conspiracy to defraud the United States. The question will become whether a Biden DOJ would identify charges and pursue a criminal prosecution.
5. The White House won’t condemn the leak.
No one from the administration has condemned the leak. Press Secretary Jen Psaki admitted that the leak “raised eyebrows” and then went on to say the White House’s focus was on protecting abortion access.
From her Tuesday press conference:
“Q: May I circle back to Steve’s question on the leak itself? Does the President agree with Justice Roberts that this was an egregious act? And does he believe that it should be criminally prosecuted?
MS. PSAKI: This would be a decision made by the Department of Justice, and we would refer to them.”
Attorney General Merrick Garland and the DOJ have offered no statements.
President Biden, boarding Air Force One, was asked, “Do you think that this leak has irreparably changed the Court?” Biden ignored the leak itself and responded that “if this decision holds, it’s really quite a radical decision.” Even in a formal statement released later Tuesday, the president did not comment on the leak and what it means for the Court’s standards and decorum.
Vice President Kamala Harris likewise released a statement ignoring the issue of the leak, but claimed, among other things, that “Republican legislators in states across the country are weaponizing the use of the law against women. The rights of all Americans are at risk.”