The Supreme Court Leak

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by Gary Fouse

Since Monday, the number one issue in the US is the apparent leaking of a Supreme Court draft document indicating that the Court is about to overturn Roe v Wade. There are two issues at play here. First is the significance of the decision-if that is indeed the final decision (which Chief Justice John Roberts denies), and second-and more importantly, in my view-the leak itself.

Let us set aside any debate on the issue of abortion itself (I am pro-life). Whether you are for or against abortion, we all should be concerned about how this document -which Roberts concedes is genuine- got turned over to Politico. It is almost certain that it was turned over, if not by one of the justices (which I doubt), by someone employed in the Court, possibly a law clerk.

If so, this is a gross violation of the confidentiality and independence of the court. While it is true that the nomination and confirmation of Supreme Court justices have become highly politicized over the years, the Court was always considered independent, and its processes were considered confidential. To my knowledge, this is the first time in the history of the Court that this has occurred.

While we don’t yet know who is responsible for the compromise of this document (We should know soon), the motive would appear to be that some disgruntled person within the Supreme Court building wanted to short-circuit what appears to be a coming decision against Roe v Wade. That would involve provoking nation-wide protests, which have already begun, and a campaign of pressure against one or more justices to change their vote before it is made public. Could threats against certain justices be far behind?

It should be noted that if this is the final decision of the Court, abortion will not be outlawed. The issue will merely be returned to the states, their voters, and their legislators to either allow it, ban it, or allow it with certain restrictions. Women wanting an abortion will still, almost certainly, be able to travel to California, New York, or several other states if their own state bans it.

Since the news broke, I have been watching the reactions on Fox News, CNN, and MSNBC (not continuously). Most of the discussion on Fox revolves around the leak and its serious implications for the Court. All I have seen on CNN and MSNBC are discussions about how this decision would be a disaster for women’s reproductive rights. Again, I may have missed something on these two networks, but they don’t seem to be concerned about the leak per se. I would guess that once the person’s identity becomes known, that person will be heralded by the left as a “heroic whistleblower”. 

In short, the Court is in dangerous waters, not because of the decision -whatever it is- but because of this leak. If the eventual decision is changed because of this leak and public pressure, the credibility of the Court will be destroyed. If the President and the Democrats decide to pack the Court and succeed in doing so, the Court’s credibility will be destroyed. It will mean that aside from the obvious fact that the nomination and confirmation of Supreme Court justices is politicized, their deliberative and decision-making process have also become politicized. We cannot have that.

4 Responses

  1. What’s all the excitement about? Do the Justices not have enough confidence in their own opinions to withstand the bombardment of citizen’s factions? What’s truly disappointing is that opinions of the Justices, as they debate with each other internally, are not made public as their viewpoints clash. That “majority opinion in progress” discussion being presented anonymously, would be a much needed education for citizen onlookers.
    Why are the Justices whining; where’s their integrity?

  2. Howard,

    What is important is that the justices can debate and decide cases without outside pressure that might corrupt or otherwise influence the process. Let the public reaction come once the decision is announced. That cannot be prevented. But if you want the entire deliberative process (after arguments) to become public, you might as well televise them. Would you televise jury deliberations in a high-profile murder case? The Supreme Court is already politicized in the nomination and confirmation of judges. That is a tragedy, but in our current climate, it seems unavoidable. At least the deliberative process has been protected-until now.If that is all going to come down to public pressure, the Supreme Court has no more credibility than one of those judge shows you see on TV.

  3. forGary, regarding pressure on the Justices, this is why I suggested that ongoing discussion among them be made anonymously, that is, without identifying the Justice making the opinion. To minimize pressure on the Justices they should sequester themselves from outside influences (TV, newspapers, …). Start and finish of their deliberations should be made public, thus permitting time for Justices to handle other cases in a timely manner.
    Good grief! Deity disallow, that Justices should be swayed by the public’s ideation on their desired outcome!
    Let’s make believe our Justices have respect for their own opinions and that they are not spineless wimps. Expressed courage is the keystone of our American existence.

    1. Howard,

      Whatever the final decision is, I just hope that nobody changes their vote due to this leak. If such is the case, we can forget about the credibility of the court. It will happen again.

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