No other American branch of government is more insular than the US Supreme Court. This small, august fraternity highly values its ability to stay above the political fray, keep its workforce in line, and uphold confidentiality. Members of the Court worship at the altar of ethics and decorum, and, as a matter of tradition, they expect a high level of loyalty and trust from their staff. In a stunning development, all this esteemed civility came crashing to earth when someone leaked a draft of an opinion overturning Roe v. Wade.
There is no doubt the material is a February draft of a Court majority opinion on Roe written by Justice Samuel Alito. Chief Justice John Roberts confirmed that on May 3. Obtained and published by Politico, this leak has been nothing short of a Swamp-sized bombshell with massive political overtones. But the real question is…
Who Done It?
Labeling this “the greatest security breach in the history of the Court,” law professor and legal expert Jonathan Turley homed in on the most logical suspects. “There are a relatively small number of individuals with access to these drafts,” wrote Turley on his website. In other words, there are simply not that many people who would have access to a draft of a Court opinion.
Sharp, sassy, and seemingly always on the ball, Mollie Hemingway of The Federalist pointed out, “Alito’s draft opinion from February would go to the concurring justices for feedback, commentary, and fine-tuning. It would also go to justices on the other side of the issue for their knowledge as they write their dissents.” Translation: It’s probably not the janitor who got his mitts on Alito’s opinion.
The political overtones regarding this leak are genuinely stunning. Again, Hemingway is on point: “Someone leaked the draft, almost certainly to pressure the justices to change their views.” Senator Mitch McConnell (R-KY) called the leak “an inappropriate pressure campaign.” Within minutes of the document being published, a crowd amassed in front of the US Supreme Court building in Washington, DC. Without missing a beat, President Joe Biden fanned the flames by taking a naked political stance in a statement on the SCOTUS leak:
“… it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
The thing about a draft of a Court opinion is that justices can change their mind before it is published in official form – their vote is not set in stone. Thus, this political pressure and backlash by pro-choice advocates could quickly turn into an epic war against specific Court members – a notion long frowned upon, but that has recently been violated.
Senate Majority Leader Chuck Schumer (D-NY) is a case in point when he made the following threat in March of 2020: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
Going from unethical conduct to a criminal act is not a stretch. According to Turley, the FBI could become involved, and if the suspect lies to the Bureau, prosecution under 18 U.S.C. 1001 is likely. Hemingway seconded this motion when she wrote:
“Those who care about norms, decorum, civility, institutions, and rule of law — or claim to — must hold the leaker and any co-conspirators fully accountable for this egregious breach. At the very least, they should be disbarred. Criminal charges might also be in order.”
Senator Tom Cotton (R-AR) also has called on the Justice Department to “use every investigative tool necessary” to get to the bottom of the leak.
The exposure of this preliminary opinion on the controversial Roe v. Wade matter has upended Washington and ignited a horrific Court scandal. Depending upon one’s political view, a search is underway for a perpetrator or a hero. The question that lies ahead is, once caught, will this person be labeled a criminal and have to face the music?