ahuq2_ BRENDAN SMIALOWSKIAFP via Getty Images_supreme court leak BRENDAN SMIALOWSKI/AFP via Getty Images

America’s Leaky Justice

The contents of a draft US Supreme Court opinion that would overrule the landmark Roe v. Wade decision establishing a constitutional right to abortion are momentous and dismaying. But how the newspaper Politico obtained the draft, and from whom, may matter even more.

CHICAGO – For the first time in American history, an insider at the US Supreme Court has deliberately disclosed a draft opinion in a high-profile case with the apparent intent of altering either the Court’s deliberations, or the public’s reactions to the putative decision. The contents of the draft – which would overrule the landmark 1973 Roe v. Wade decision establishing a constitutional right to abortion – are momentous and dismaying. But how the newspaper Politico obtained the draft also matters. It bodes worse for the Court, as an institution, if the leaker was a justice, rather than a young law clerk, and it would be even more worrying if the leaker was a conservative rather than a liberal.

Commentators have rushed to speculate about the source of Politico’s scoop. Since draft opinions originate in the Court, and are closely guarded, it is very unlikely that an outsider could have accidently stumbled upon one. Nor would a secretary or aide – long-term employees whose careers depend on their loyalty to the Court – likely have made an unauthorized disclosure. This means that the leak was most likely executed or enabled by a law clerk (top young law graduates who serve for one year only at the start of their career) or a justice.

The difference between clerks and justices matters, because there are no plausible accountability mechanisms if the leaker was a justice. After all, no federal statute directly mandates secrecy for draft opinions, so criminal liability is only a remote possibility. The Code of Conduct for Judicial Employees does explicitly mention a federal criminal statute prohibiting theft of any “thing of value of the United States.” But whether this covers a draft opinion is at best unsettled. A criminal prosecution would face an uphill road.

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