The leak of an entire draft opinion in the middle of deliberations in a vitally important case suggests…a desire either to bully or destroy the Court as an effective institution. After this episode, justices will feel less secure about the confidentiality of their deliberations and think twice about what they put in drafts. The work of the Court will inevitably suffer.
This week’s leak of the draft majority opinion in Dobbs, the Mississippi abortion case, is unprecedented. Leaks from the Court have occurred before, but this leak is different, a potentially shattering event, both because of the leaker’s probable motives and the leak’s probable effects. Most likely, the leaker set out to intimidate one or more of the justices and affect the outcome of the case. Alternatively, the leaker hoped to destroy the Court as an institution—in the approving phrase of one progressive commentator, to “burn this place down.” The long-term consequences of the leak may be severe.
I know that many, on both sides of the abortion debate, will think that focusing on the danger to the Court misses the point. Surely, the main thing is whether the Constitution contains a right to abortion, not whether the justices suffer some passing embarrassment. But if the rule of law is to survive, Americans will need to maintain the Court as a functioning institution. This week’s disclosure poses grave risks in that regard.
Many pundits have asserted that what makes disclosure of the Dobbs draft shocking is that, unlike other Washington institutions, the Court “doesn’t leak.” That’s true as a comparative statement. The Court takes disclosures extremely seriously and leaks much less frequently than other branches of our national government. When I clerked at the Court thirty years ago, the chief justice strongly admonished me and other law clerks not to reveal the Court’s internal deliberations. But leaks are not unheard of. In the nineteenth century, newspapers reported on the Court’s internal deliberations in Dred Scott and revealed ahead of time the outcome of an important Commerce Clause case. In 1919, a law clerk resigned because he allegedly leaked inside information about a Court ruling to make a profit on Wall Street.
More recently, in the 1970s, the outcome of Roe itself leaked shortly before the Court issued its opinion. Woodward and Armstrong had inside sources, including at least one justice, for their 1979 book, The Brethren. Former law clerks cooperated with Vanity Fair in 2004 to reveal the court’s internal deliberations in Bush v. Gore, which the Court had decided four years previously. After the first Obamacare decision in 2012, inside sources disclosed that Chief Justice Roberts had changed his initial vote in that case. A couple of years ago, sources leaked that some conservative justices had decided to vote with progressives in Bostock, the Title VII transgender rights case, before the ruling came down. There are other examples as well.