A Supreme Court in disarray after an extraordinary breach

WASHINGTON — The sources have grounds, and the leaked draft opinion quashing Roe v. Wade raises a question as old as the Roman Empire. ...


WASHINGTON — The sources have grounds, and the leaked draft opinion quashing Roe v. Wade raises a question as old as the Roman Empire. Cui bono? Who benefits?

Not the Supreme Court as an institution. His reputation was in decline even before the extraordinary breach of its standards of confidentiality, with much of the nation believing that it is little different from the political branches of government. The internal disarray suggested by the leak, completely at odds with the decorum prized by Chief Justice John G. Roberts Jr., dealt a blow to the court’s legitimacy.

Relations between judges, too, based on questioning during arguments and statements in opinions, have become strained and frosty. “Will this institution survive the stench it creates in the public perception that the Constitution and its reading are just political acts? Judge Sonia Sotomayor asked when Roe’s challenge was argued in December, as it became clear that five judges were prepared to overturn the decision.

The fact of flight cannot be separated from its substance. Only a decision as extraordinary as the elimination of a constitutional right in place for half a century could transform the court into an institution like any other in Washington, where rival factions leak secrets in the hope of gaining an advantage. .

“Until now, a leak like this would have been unthinkable,” said former New Jersey Supreme Court Justice Peter G. Verniero. “The protocol of our highest court has been badly broken. The leak itself reflects another sad step towards the court’s transformation into a political body, which, whatever your favorite case law, is most unhealthy for the rule of law.

The tribunal collateral damage suffered in March, when it emerged that Virginia Thomas, the wife of Judge Clarence Thomas, had sent inflammatory text messages to the Trump White House in the weeks leading up to the January 6 attack and that Judge Thomas not only did not had failed to disqualify himself from a related matter, but had also expressed the only noted dissent.

The harm caused by the leak was more direct, raising questions about whether the court is able to operate in an orderly fashion.

Judge Samuel A. Alito Jr. the draft notice is dated February 10, almost three months ago. According to ordinary court practice, additional drafts have circulated since then, as Judge Alito refined his arguments, made changes to accommodate his allies, responded to criticism in one or more agreement or dissent drafts – and , above all, strove to ensure that he did not lose his majority.

The draft was marked “opinion of the court”, which means that it was intended to reflect the opinions of at least five judges. Politico, which obtained the document, reported that five court members had voted to cancel Roe shortly after the December row: Justices Alito and Thomas and the three court members appointed by President Donald J. Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett.

These five votes were consistent with the questions these judges asked during oral argument. They were also in line with Mr. Trump’s vow to appoint judges who would overrule Roe, who established a constitutional right to abortion in 1973.

“That roster remains unchanged as of this week,” Politico reported.

Yet Justice Alito was undoubtedly concerned that Chief Justice Roberts, who sketched a middle position to the argument, could threaten his majority. The chief justice suggested the court could uphold the Mississippi law at issue in the case, which bans abortions after 15 weeks, but refrain from overturning Roe outright.

This position would have been considered extreme just a few years ago, as it would eliminate the key element of Roe and Planned Parenthood v. Casey, the 1992 ruling that reaffirmed what she called Roe’s “central hold” – that “a state can not prohibit any woman from making the ultimate decision to terminate her pregnancy before she is viable.”

Viability, the ability of the fetus to survive outside the uterus, is these days around 23 weeks, which means Mississippi’s 15-week law is in stark contrast to Roe and Casey. But the chief justice’s approach, whether seen as incremental or unprincipled, would have left abortion accessible, for now, to many people.

In an op-ed last week, The Wall Street Journal expressed concern that Chief Justice Roberts was trying to persuade Justices Kavanaugh and Barrett take his narrower approach.

The purpose of the leak, therefore, may have been to lock down the conservative five-judge majority.

“I would be wary of jumping to the conclusion that the funder is necessarily someone who opposes the overturning of Roe v. Wade,” said University of California law professor Richard L. Hasen. in Irvine.

Kermit Roosevelt, a law professor at the University of Pennsylvania, said the source was likely trying to raise the price of the job change.

“In terms of who leaked it and why, it seems to me much more likely that it came from the right in response to an actual or threatened defection by one of the five who voted to unseat Roe,” he said. he declares. “The leak of this first draft makes it more costly for a defector, as people will now think they changed their vote after the leak in response to public outrage.”

Professor Hasen said there was another benefit to the right to disclosure of the draft opinion.

“This type of leak could actually help the likely future majority to overthrow Roe if it diverts the conversation away from the issue of Supreme Court secrecy and the danger of leaks about the legitimacy of the process,” he said. “It’s better than a conversation about the potential illegitimacy of overturning a long-standing precedent allowing for reproductive choice. It could also be meant to cushion the blow by signaling everyone about the coming earthquake.

Although Chief Justice Roberts said Tuesday he had ordered an investigation into what he described as a “gross breach of trust”, it was not clear that the leak violated any law. As Chief Justice Warren E. Burger wrote in a footnote in his dissent in the Pentagon Papers case, which refused to block publication of a secret history of the Vietnam War, “No law gives this court the express power to establish and apply the strictest safeguards for the secrecy of our deliberations and records.

Nonetheless, he noted, the court is not powerless to root out and punish the source: “I have little doubt as to the inherent power of the court to protect the confidentiality of its internal dealings by all judicial measures. that might be needed. »

The reasoning in the draft opinion is what one would expect from Judge Alito, a fierce critic of Roe and Casey, said Notre Dame law professor Richard W. Garnett.

“It is unlikely that observers or commentators familiar with the case will be genuinely surprised by the possibility that Judge Alito wrote a majority opinion declaring these decisions to be ‘patently wrong,'” Professor Garnett said.

“In any event, however, for an employee or member of the tribunal to intentionally leak a draft opinion would be a serious betrayal of trust, particularly if the leak was an effort to advance partisan goals or to undermine the work and the legitimacy of the tribunal,” Professor Garnett added. “Whatever our views on particular legal issues, we should all hope that judges will not be swayed or swayed by such efforts.”

The Supreme Court confirmed on Tuesday that the draft opinion was authentic, but warned that it did not “represent a final decision of the court or the final position of any member on the issues in the case.” Lynn Fitch, Mississippi Attorney General, said in a statement, “We will let the Supreme Court speak for itself and wait for the court’s official opinion.

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