Pursuing the Court Leak
Terry H. Schwadron
May 5, 2002
Yes, the leak of a draft opinion to overturn Roe v. Wade to Politico was rare and temporarily shocking because the Supreme Court processes are private.
Yet the insistence of politicians, particularly Republican leaders in this case, to focus on who leaked rather than the substance tells us something about the dominance of partisanship in our daily lives and the dangers of skewing or obscuring the real problems for the easier tale to tell.
“Such a leak from the court’s typically tight inner sanctum is itself astonishing. The court works on trust among justices and staff, so that the justices can deliberate frankly,” The Washington Post editorialized.
“Whether the document leaked from a conservative justice’s chambers, in an effort to lock in the support of others on the right for its far-reaching language, or from a liberal’s, in an effort to mobilize outside pressure against such a ruling, the leak represents a dire breakdown in norms and another dramatic sign of the court’s political drift,” the editorial noted.
But the effects of wiping out 50 years of constitutionally protected abortion, the effects on women, children and families, the risk of undercutting other rights using the same reasoning and the deteriorated legitimacy of the court itself far outweigh solving the mystery of who did the leaking.
Indeed, despite all the caterwauling over whether it was a liberal law clerk or a conservative court employee or a misplaced copy that ended up in the hands of smart reporters, there is nothing legally wrong here, nothing that was classified information, nothing that is even terribly unusual in the halls of Washington.
It was just new at the Supreme Court, where secrecy has been an enforced watchword.
Who Benefits?
If we could take a breath here before leaping to calls for prosecution for a leaked draft of an opinion, a few things stand out.
First, people in governments or businesses, particularly those involved in contentious issues, leak to reporters constantly. As Adam Liptak of The New York Times noted, “Sources have motives, and the leaked draft opinion overturning Roe v. Wade raises a question as old as the Roman Empire. Cui bono? Who benefits?”
The leak may have been meant to help keep a conservative coalition together through subsequent draft opinions, or it may have been prompted by outrage that a pending 5–4 decision might put half the women in the country in jeopardy of breaking state laws by considering an abortion, It may have been just fascination at the nature of the reasoning behind a decision that everyone has suggested would lead to serious rewrite or rejection of the Roe principles.
The point is, we don’t know, and we are not being served well by senatorial outrage from Ted Cruz (R-Texas) or Lindsey Graham (R-SC) or Mitch McConnell (R-Ky.) blaming some nameless left-leaning clerk for trying to rile up the country by releasing the draft opinion.
Some go further: Operation Rescue, the anti-abortion activist group implicated in the 2009 murder of an abortion doctor, declared with no evidence that the leak had most likely come from the office of Justice Sonia Sotomayor.
Should its findings hold, the same action would be coming from the court itself at the end of June. Where is the political advantage here in early disclosure that the conservatives on the court are muscling through a total rejection of legal precedent and putting women’s health at risk.
“The harm from the leak was more direct, raising questions about whether the court is capable of functioning in an orderly way,” noted Liptak. The mystery lies in the strategy behind the leak, commented Ross Douthat, another New York Times columnist.
Columnist George Will wrote that “The leaker might have truncated, temporarily, the court’s deliberative process, much as the Jan. 6 mob temporarily truncated a constitutional process in the Capitol.” He added that “The leaker — probably full of passionate intensity, as the worst usually are — will leave a lingering stench in the building where he or she betrayed a trust. . . If justice is done, this person will never again practice law but will experience the law’s rigors.”
Leaking to Reporters
For a. reporter who covers a beat, cultivating sources clearly is important. These sources can verify what you may hear is going on or pour cold water on speculation; sometimes a source can trust you with a document or information that tells you what an otherwise secretive process protects.
For legitimate news outlets, taking the document just starts a process of validation — and seeking context. And it comes with agreement about how to protect the leaker.
Getting as exercised as Ted Cruz over the leak is a bit like the mock outrage of Casablanca’s Captain
Louis Renault upon discovering that gambling was going on in the back room at Rick’s.
In this case, we need be aware that additional drafts have almost surely been produced since this February memo and we have no way to know that the majority is holding, that the language has been adjusted or that the reasoning has changed. The chief justice will be in search of as wide a majority as possible, given the explosive nature of the issues involved.
At Politico, no one is talking about how they came up with the document. Only about 40 people, including the justices themselves, have access to the draft opinion. The court marshal tasked to find the leaker no doubt will be reviewing electronic records of who could access, copy or transmit the opinion text, but that process is much more difficult than it sounds. The court uses a closed computer system that can be shut off from internet access.
There will be a loss of trust for staff and process, there will be more ways to enforce secrecy rather than avenues to make the court’s processes more transparent.
Still, there is a general assumption in all this that secrecy would help the court manage the public reaction to an opinion that wipes away federal abortion protections.
Finding a leaker seems to have nothing to do with the breadth of the public rejection of the court’s apparent desire to eliminate abortion based on a finding by five conservative justices who find themselves with a winning vote among nine.
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