The first “leak,” though unprecedented, was survivable. There have been other instances of justices telegraphing their opinions on a forthcoming ruling (albeit through less crude and blatant means than divulging a complete first draft opinion). People make mistakes; and even the deliberate, rogue actions of a single individual can be explained or excused by simple negligence or lack of foresight from those responsible for keeping the Supreme Court’s opinions confidential.
But what we see now, with (apparently) multiple follow-up leaks is a court that has lost—or thrown away—any semblance of integrity.
As reported by Josh Gerstein, Alexander Ward, and Ryan Lizza, writing for POLITICO, since the initial bombshell leak of Justice Alito’s purported majority opinion overruling Roe v. Wade, the court, far from buttoning its lips, has continued to leak confidential information like a veritable gusher.
Justice Samuel Alito’s sweeping and blunt draft majority opinion from February overturning Roe remains the court’s only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes. No dissenting draft opinions have circulated from any justice, including the three liberals.
All of these leaks — including the leak of the opinion itself — follow from seemingly yet another leak, the Wall Street Journal when that publication on April 26 reported on the “progress” of the court’s internal deliberations.
Forget for a moment the substance of what was leaked. There is a reason why the views and allegiances of various members of the Supreme Court, the existence and number of potential dissents, or who is or is not “on board” with an original leaked draft are never, ever divulged in this manner; It’s to preserve at least the appearance of integrity of the process and remove suspicions of bias or susceptibility to external (or in this case, internal) influences. Courts simply do not leak this information “ahead of time” or in dribs and drabs if they want to be perceived as legitimate arbiters of the law. That’s what distinguishes the judiciary from the legislative branch; it’s the foundation for the respect afforded to judicial rulings as final resolutions of disputes, whatever the subject matter.
After the leak of the draft opinion Chief Justice John Roberts had paramount responsibility for determining its source and origin. The fact that he commissioned the marshal of the court to investigate its source and origin demonstrated that very clearly. And he is responsible, as chief, for the conduct of his fellow justices. They should have been ordered in no uncertain fashion to lock down their staff.
But clearly, someone didn’t get the memo. The court is now, as Josh Marshall, writing for TalkingPointsMemo describes it, leaking like a sieve, with the leaks “evolving into a de facto communications policy from the right.”
The details are interesting (if entirely unsurprising). But what’s most notable is the continued leaking. There’s no new draft given to the Politico reporters. But we have a continued flow of information about the internal deliberations.
This turns the idea of an independent judiciary into a travesty, and not simply because the policy matter being debated here—the continuing existence of the constitutional right to terminate one’s pregnancy—is so grave and momentous. The entire premise underlying the judicial resolution of disputes in this country rests on the idea that the public is not privy to the internal deliberation process, either by an individual judge or multiple ones, unless the court itself chooses to reveal that process in its final opinion. Otherwise, its rationale is always subject to question and accusations of bias, undue influence, or worse. The ultimate validity of a single, uniform result—a “decision”—whatever that result may be, necessarily relies on the confidentiality of the process used to achieve that result.
And the fact that this court’s bias and corruption appear obvious to many of us doesn’t change the gravity of the failure that’s being permitted here. The idea of judicial integrity is a fundamental premise that applies across the board and is drilled into every law student and practitioner. It’s the entire foundation for trust in our legal system, no matter what the court at issue.
Supreme Court justices know this better than anyone—or they should. The initial leak—however profound and revelatory—was thought to be an anomaly. But the repeated, continued leaks we are now seeing allowed in this case bespeak a court that has completely lost its bearings and ability to control the most sacrosanct of its responsibilities. And for that failure, the chief justice is ultimately responsible.
Roberts should resign. Immediately.