The biggest story coming out of Monday’s reporting by the website Politico was not that the U.S. Supreme Court’s conservative majority is likely to overturn Roe v. Wade.
That’s been an anticipated outcome ever since the court agreed to hear Dobbs v. Jackson Women’s Health Organization and consider not just the constitutionality of the Mississippi law that would ban abortion after 15 weeks of gestation but whether a state could ban the practice entirely.
When the Supreme Court heard oral arguments in the Dobbs case in December, at least five of the court’s nine justices signaled they were inclined to invalidate the 1973 decision that legalized abortion on demand nationwide and instead let the individual states — and theoretically Congress — decide about the legality of abortion.
The biggest story Monday was that someone within the court — one of the justices or a law clerk, most likely — provided the majority’s first draft opinion to Politico in an apparent attempt to influence the court’s final vote on the issue.
The leaker is most likely from the liberal, pro-choice faction on the court, although it should not be completely ruled out that it could have been from the conservative, pro-life side. Whichever side it was, the intent is clear. To use the public’s predictably emotional reaction to the news to affect the outcome.
Calling the leak an “egregious breach of trust,” Chief Justice John Roberts — caught in the middle between the two factions on the court — took two unusual but necessary steps on Tuesday. He confirmed the authenticity of the draft, while emphasizing it was not necessarily the justices’ final word on the matter. And he ordered an investigation to determine the identity of the leaker.
Although it’s common for members of the legislative and executive branches to leak news to the press, members of the Supreme Court historically have not played that game in order to insulate themselves from political pressure and maintain trust among each other. The justices typically circulate draft opinions among themselves and respect the confidentiality of each other’s input until the final versions of the majority rulings (and minority dissents) are released. It is this mutual trust, built up over centuries of tradition, that has allowed the court to remain a dispassionate arbiter of the law even when the justices come to opposite conclusions.
Whoever decided to betray that trust has dealt the court’s impartiality a severe blow. The leak and its aftermath, including politicians from President Biden on down already trying to turn the story into an election-year pitch, will further lower the nation’s respect for the court.
When America’s Founding Fathers created the three branches of government, they wanted the federal judiciary to be as free of politics as possible. That’s why they made federal judges appointed, not elected, and why they decided the appointments should be for life. They knew it was essential for the judges to be able to make their decisions, even unpopular ones, based on a faithful interpretation of law, free from outside influence and personal benefit.
The Supreme Court’s decision on abortion will be momentous, no question about that. It’s certain, at least in the near term, to keep this country divided on an issue for which it has been split for a half-century. But if it is soundly reasoned, the decision will stand the test of time.
Roe v. Wade has been under assault since its inception because it was not soundly reasoned. It wrote law, it did not interpret it. It created a fabrication, a right to privacy, that does not exist in the Constitution. It tried to set a purely arbitrary threshold on how long a woman’s right to control her body exceeds an unborn child’s right to live.
Even if the leak to Politico were to somehow save Roe this time, the flaws of that 1973 decision will not go away. If it’s not overturned this year, it will be ultimately. A faithful reading of the Constitution demands it.