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by Charlotte Plantive & Chris Lefkow
The leak of a draft Supreme Court opinion that would overturn nearly 50 years of abortion rights in the United States is an extraordinary breach of the normally jealously guarded secrecy of the nation’s top judicial institution. Online News
As the fallout from the bombshell leak to the media reverberated in Washington, attention turned to the identity and motivation of the leaker with both the left and the right casting blame.
Supreme Court opinions are tightly held until they are formally announced with just a small circle of law clerks and permanent court staff having access to the closed-door deliberations of the nine justices.
The case in question, a Mississippi law that would ban most abortions after 15 weeks, was argued in December and in the normal course of business the court would publish its ruling by the end of June.
According to a draft majority opinion obtained by Politico, conservatives on the nation’s highest court, by a 5-4 vote, would toss out the landmark 1973 Roe v. Wade decision that legally enshrined a woman’s right to abortion in the United States.
Chief Justice John Roberts confirmed on Tuesday that the draft opinion was authentic but stressed it did not represent the “final position of any member.”
Roberts said the leak was a “singular and egregious breach” of trust and he directed the marshal of the court to launch an investigation into the source.
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“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”
Referring to the leak, SCOTUSblog, a website that covers court affairs, said it is “impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff.
“This leak is the gravest, most unforgivable sin,” SCOTUSblog said.
“We’ve had Supreme Court leaks before. But this is a whole new order of magnitude of leak,” said Orin Kerr, a law professor at the University of California, Berkeley.
Neal Katyal, who argued cases before the Supreme Court as president Barack Obama’s acting solicitor general, said it was “the equivalent of the Pentagon Papers leak,” a reference to the leaked documents outlining US involvement in Vietnam.
- ‘Institutional innocence’ –
Jonathan Turley, a law professor at George Washington University, opined in USA Today that the Supreme Court has lost its “institutional innocence.”
“Even in a city that floats on a rolling sea of leaks, the Supreme Court has long been an island of integrity and confidentiality,” Turley wrote.
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“This was clearly a politically calculated act by someone who was willing to abandon every ethical and professional principle for a political cause,” he said. “There is no obvious reason to leak other than to unleash outside pressure on the court.”
Republican lawmakers suggested the leak may be a bid to pressure the potential swing vote in the case — Justice Brett Kavanaugh, one of three conservatives nominated to the court by former president Donald Trump.
Conservatives currently hold a 6-3 majority on the court, but CNN reported that Roberts, the chief justice, who generally sides with the conservative faction, does not support fully overturning Roe v. Wade.
“This leak is a brazen effort to intimidate the court’s majority,” said Albert Mohler, an anti-abortion activist who is president of The Southern Baptist Theological Seminary.
Mohler said the draft was exposed “in a subversive attempt to undermine or marginalize the court’s decision and perhaps to divide its majority before any decision can be announced.”
Senate Republican minority leader Mitch McConnell called the leak “another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”
Steve Vladeck, a law professor at the University of Texas, speculated it may have come from abortion opponents seeking to shore up support.
“Suppose you’re a conservative Justice committed to overruling Roe and Casey,” Vladeck tweeted. “There were five votes for that result.
“Now, dissents are coming, and you’re worried about losing the majority. What do you do?” he asked.
cl/mlm
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