More Institutional Damage from the SCOTUS Leak

We can infer a number of things from the leak of the draft opinion from the Supreme Court.

What is critical, however, is that Politico’s publishing the draft undermines the legitimacy of the Court and, most important, the deeply held value of the rule of law.

What can we infer?

First, Chief Justice Roberts did not vote in favor of the result, upholding the Nevada law by overturning Roe. After each argument, the Justices gather with only the nine present and discuss the case. They then take a vote on the outcome (not the reasoning) before they conclude that meeting. The most senior justice who votes in the majority assigns one justice to write a draft opinion. The CJ is clearly an institutionalist and has long been concerned about SCOTUS appearing too politically motivated, thereby losing credibility with the American people. If Roberts had voted in the majority, he undoubtedly would have assigned the opinion to himself or another justice who share his institutionalist philosophy. Not Alito. So Roberts must not have been in the majority.

The most senior justice after Roberts is Justice Thomas who must have been the one who assigned the writing to Alito, a known bomb-thrower when it comes to Roe.

Second, there must be ongoing discussions among the justices about the reasoning. Alito’s draft opinion goes about as far as he could possibly go by overruling Roe and undermining the concept of substantive due process under the 14th amendment. (In the future, Justices Alito and Thomas will have no problem citing this opinion as weakening substantive due process without mentioning the disclaimer that it applies only to abortion cases.) There are less radical ways to uphold the Nevada law (if that is what you want to do) and the institutionalist Roberts would favor doing so. For example, an opinion could uphold the fundamental distinction in Roe by saying that there can be no state intrusion in the abortion decision before viability, but saying that medical science continues to advance so that viability now occurs at an earlier time. That opinion could say that states have the power to determine when viability occurs as long as they act reasonably (without defining that in this opinion). They would then say that Nevada’s legislation to establish viability at 15 weeks gestation is reasonable and constitutional.

We can infer that since February CJ Roberts has circulated an opinion that, by some reasoning, reaffirms Roe while upholding the Nevada statute. He may be trying to convince one or two justices who originally voted with the majority to sign on to his reasoning. It is unlikely that he will garner a majority, but he could prevent a majority opinion that overrules Roe.

All of that internal wrangling is normal for SCOTUS and good for the country. The justices generally will come out with better reasoned opinions after robust internal debate. The story is told that, in one particularly divisive case, Justice Ginsberg had just about finished the majority opinion when Justice Scalia walked into her office and handed her his scathing dissent. She used his opinion to tighten up the logic and persuasiveness of her own opinion (as he knew she would), ending with a ruling that was more easily accept by the American public.

Third, if Alito and Thomas fear that Roberts could be successful, we can infer that either one of them or one of their clerks (probably with the Justice’s tacit approval) leaked the draft opinion to Politico.

Here is where the problems arise. Internal debate over the outcomes and the reasoning make for better law but must remain internal. Those discussions may be over judicial philosophy, the meaning of earlier opinions, or even the impact on the American public, but what matters is exclusively the final wording of the majority opinion. If Justice Kavanaugh or Justice Barrett (or maybe even Justice Gorsuch) was leaning toward the Roberts opinion, the leaker would believe it would be a disaster for the Court when a final decision emerges and it is obvious that one or more changed sides. Just think how much fighting there will be when everyone is able to parse the final opinion by comparing it word for word with the leaked draft. The public will view the Court as just another political body, subject to the whims of public opinion, lobbying, and extra-legal influences. While some of those inevitably impact any decision on social issues, public acceptance of the outcome is based on the belief that the justices are insulated from politics. Without public acceptance of the outcome, the rule of law will falter and eventually collapse.

The role of journalists in this leak is also something to consider. A Wall Street Journal editorial a week or so before the leak indicated that they knew how the majority of the Court had voted and even that Alito was writing the opinion. I suspect that the leaker actually gave the draft opinion to a WSJ reporter but they concluded that, in the public interest, they should not publish it in whole. Instead they wrote an editorial using some of the facts from the draft. The leaker likely intended that the WSJ would publish the draft, and when they did not, decided to give it to Politico. Politico’s decision to publish, after confirming that it was an actual draft opinion, drew a different balance between the pubic’s right to know and the negative impact on the rule of law.

I think a likely outcome is a mish-mash of opinions with no majority overruling Roe. Justices Alito, Thomas, likely Gorsuch and possibly Barrett will sign the Alito opinion, or something close to it. Chief Justice Roberts and Justice Kavanaugh and possibly Justice Barrett will sign an opinion affirming Roe but upholding the Nevada statute. Justices Kagen, Breyer and Sotomayer will write to reaffirm Roe but dissent on upholding the Nevada statute. The result: 5 or 6 votes to reaffirm Roe but 6 votes to uphold the Nevada statute.

One crazy possibility is that Robert attracts not only Kavanaugh and Barrett but also Gorsuch and Kagen to his opinion. That makes five, a majority. Kagen has become the Court’s second institutionalist and may sign on to upholidng the Nevada statute to avoid embarrassing the Court and to save Roe for now. That only happens if Roberts has the other three, which is unlikely.

However this case is resolved, the majesty, dignity and solemnity of SCOTUS opinions has been tragically diminished because of this leak. Wherever the leak came from, if it is ever finally determined, the Senate should consider impeachment proceedings to begin to rectify the damage to the institution.