The leaking of the United States Supreme Court draft opinion regarding the landmark Roe v. Wade decision Monday is being described as the greatest security breach in the history of the Court — an institution typically known for being ironclad.
Some, like University of Minnesota professor Tim Johnson, might even say it’s akin to some of the biggest leaks in American history.
“This meets the ‘Pentagon Papers’ threshold; this meets the ‘Deep Throat’ threshold,” he said.
How did it happen? We don’t know yet. To find out, Chief Justice John Roberts ordered an investigation.
As for Johnson, he’s studied the Court’s every move for decades. His take?
“The significance of this is, it’s the first time in history where we have gotten to see this early on in the process what the majority is thinking about how it’s going to rule in the case,” Johnson said.
A similar thing did happen during the first Roe decision in 1973, when hours before it was announced, a clerk leaked the ruling to Time Magazine where it was subsequently published.
Although Monday’s leak was in draft form, experts believe the leak could still be significant and damaging to the entity that is the nation’s highest court.
“I think it’s damaging because they take their privacy and security so incredibly seriously,” Johnson said.
Historically, the court likes to be seen as apolitical — above leaks, most certainly.
Johnson says there are fewer than 50 people, including the justices, who would even have access to this draft. Of those people, clerks and others with access to the documents, sans justices, sign non-disclosure agreements covering anything the court is doing.
“You do not tell anything,” Johnson said. “You don’t say, ‘I know what my justice eats for lunch every single day.’ You don’t even talk about something that trite. And to leak an opinion that is still not in its final form is as the court said is an ‘unforgivable sin.'”
To even have Chief Justice Roberts confirm the authenticity of the leak Tuesday is extraordinary, as the Court generally pays no attention to outside stories like this.
The fact that the opinion did leak stresses the extent of the breach — one too big to be ignored.
“The Court really holds its rules in very high regard,” Johnson said.
Johnson did, however, stop short of calling the breach a criminal act — but that’s not to say there won’t necessarily be consequences.
“I mean, I suppose there could be something civil because NDAs have been signed,” he said.
Although it’s plausible it could later be looked at as theft of government information, the Justice Department has generally said it’s not appropriate to prosecute a person who got or used information primarily for the purpose of getting it to the public, which so far, is what this looks like.
Experts say we could be four to eight weeks away from a decision being final.
Are There Serious Problems This Leak Could Cause?
Democratic lawmakers and constitutional scholars say the leaked Supreme Court decision that appears to overturn abortion rights could lead to overturning the right to same-sex marriage and other civil rights.
Part of the opinion, written by Justice Samuel Alito, explicitly references Obergefell v. Hodges, the landmark decision to legalize same-sex marriage, and Lawrence v. Texas, a decision that legalized sodomy.
In the leaked opinion, Alito says these decisions do not protect rights that are “deeply rooted in history.”
“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much,” Alito wrote, claiming that the right to autonomy could “license fundamental rights to illicit drug use, prostitution, and the like.”
Alito adds in the opinion that “the cases on which Roe and Casey rely” are safe because none “involved the critical moral question posed by abortion,” meaning the decisions to allow same-sex and interracial marriage, the right to contraception, prohibiting sterilization without consent would not be affected, even if Roe v. Wade is overturned.
But by undermining the constitutional justification for abortion by targeting unenumerated rights — constitutional rights that aren’t explicit in the text but are implied — Democrats say the nation’s highest court is setting up future legal fights to roll back other long-held constitutional rights.
Rep. Alexandria Ocasio-Cortez tweeted that she believes the Supreme Court “isn’t just coming for abortion – they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights.”
Rep. Ilhan Omar called to “expand the court” after the leaked decision made headlines, saying the current Supreme Court justices will “not stop here.”
The leaked draft appears to show that the conservative-majority Supreme Court is ready to overturn Roe v. Wade, the 1973 decision that allowed women the right to an abortion.
The opinion states Roe was “egregiously wrong from the start.”
“We hold that Roe and Casey must be overruled,” the draft opinion says, labeled as the “Opinion of the Court,” per Politico.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” it continues.
The leak is not the final language of the ruling nor the final vote. The actual decision from the court on this major abortion case, Dobbs v. Jackson Women’s Health Organization, is expected to be handed down by the end of June.
Legal scholar Laurence Tribe echoed Ocasio-Cortez’s statement noting “predictable next steps” if the leaked opinion officially becomes law.
“A nationwide abortion ban, followed by a push to roll back rights to contraception, same-sex marriage, sexual privacy, and the full array of textually unenumerated rights long taken for granted,” Tribe tweeted.
I’m no Constitutional scholar. But I DO understand the purposes and fundamental meaning of the words in the Constitution contained in the first ten amendments: “The Bill of Rights.” I’m an “originalist” — one who believes our forefathers’ intent in penning and putting that document in practice was to remain applicable for generations to come.
Of course they understood that times would change, needs in society would change, and these alone would demand an ability to “edit” the Constitution to fit in whatever generation the issues detailed above would require change. Therefore, the Constitution contains detailed instructions to use to make those changes: Amendments.
Pro-Choice advocates hate that amendments are the sole instrument that can amend the constitution. The process of amendments in this context is arduous, to say the least. Jefferson and Co. purposely made it tough to prevent the hasty crafting and initiating any amendments that might be enacted purely for political purposes.
“Why don’t they just go ahead and amend the Constitution to preserve abortion nationally?” Believe me, the Left would love to be able to waltz through that process to make abortion a national right. But Americans are almost equally spit on the issue. And, right now, Americans do NOT trust our present Congress nor Executive branch to the level required to reach consensus sufficient to amend the Constitution.
I’ll make a prediction: the perpetrator who purposely leaked the draft of the draft of the SCOTUS opinion WILL be found. That person WILL face criminal charges for leaking that draft.
What will happen next? The perpetrator will be prosecuted and, if found guilty as charged, will serve time in prison. But how is that a good finish that abortion proponents really need and few “want?”
To answer that question in the way prescribed in U.S. law is simple: “If” the perpetrator is discovered, arrested for crime(s) committed, and then prosecuted, the results dictated in law would be the ONLY acceptable outcome for the nation as a whole.
I’ll end this by asking YOU a question: “What do YOU think should be done about the leak and the leaker? If found, tried and found guilty, what should the next step be?
If the Supreme Court actually support the contents in that leaked draft, all hell will break loose. There would certainly be demonstrations and riots that would erupt across the nation. We don’t need another “George Floyd” pushback that destroyed hundreds of millions of dollars of real estate and hurt hundreds physically.
Do you really think this Congress and this White House will accept anything from the Supreme Court opinion when issued that align with the contents of this Summary? I have zero doubts that Congress will do little to uphold the current laws of the U.S. regarding abortion. And every day, tensions will rise, anger will grow stronger, and hate will find it’s way back into the very fabric on the U.S.
We could find ourselves back in the same shape as America faced in the 1700s. And I doubt the results would be the same. Why? There was overall unity of purpose when the Constitution was penned.
Do you see any evidence of the political left and right could ever reach consensus on these issues?
There’s your answer!