May 6, 2022
Originally published in The Salt Lake Tribune.
The unprecedented leak of a draft court opinion in Dobbs v. Jackson Women’s Health Organization has accomplished what decades of culture war politics has failed to do: advance the debate around state and federal abortion policy.
The prospect of state abortion laws actually taking effect has forced many elected officials to seriously consider (or reconsider) their policy position, instead of thinking only about their electoral position. The sober appraisal of policy views by elected officials is healthy for the institutions of our democratic republic.
Despite that silver lining, the leak of the opinion itself is damaging to American democracy by how it harms the institution of the Supreme Court. It jeopardizes the confidentiality of the court – an essential ingredient for consistently sound legal decisions – and threatens to undermine public trust in the institution.
The draft opinion, written by Justice Samuel Alito, and reportedly reflecting the view of a majority of justices, would overrule the Roe v. Wade decision and allow the states to set their own policies on the issue of abortion. This means that some states would likely enact (or begin to enforce) protections of unborn children, and others would continue to allow for, and even subsidize, abortion throughout pregnancy.
Inside the court, though, the situation appears to be far more dramatic. SCOTUSblog tweeted on Monday night: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
Chief Justice John Roberts called the leak a “betrayal of the confidences of the Court” and “a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.” He has ordered an investigation.
Ironically, the opinion is clearly labeled a draft and almost surely does not reflect the final decision of the court. The leak seems intended to provoke an outcry – an attempt to intimidate the justices who might support the draft opinion. That intention seems to have worked, with the protests and statements from politicians focusing not on the breach of trust but on the contents of the draft opinion.
This is unfortunate. The Supreme Court is intentionally designed to stand apart from normal partisan politics. That may not always happen, but it is an aspiration that should not be abandoned or undercut.
The confidentiality of internal court deliberations is an important feature of the court’s unique role. After oral argument on a case is concluded, the justices vote on the basic outcome of the case and exchange written legal opinions.
The confidentiality of that exchange generates a candid back-and-forth to reach agreement on the specific language of the opinions. The result is often that justices rethink – and occasionally change outright – their original position. This process makes it more likely that decisions are based on constitutional analysis and legal rules rather than worries about how a justice’s ideas or questions will look to interest groups or the media.
According to the most recent Pew Research Center poll, the Supreme Court has a +10 net favorability rating among Americans. It is one of the few federal government institutions that function well enough to earn public trust. The court’s members tend to put their institution’s role above their own political popularity, and most court rulings are consensus decisions (unanimous or near unanimous).
The leak introduces suspicion and the potential for posturing into the process – a bad development. It could lead to poorer decision-making in the future if justices begin worrying more about breaches in confidentiality than about reaching the best legal ruling. We can only hope that will not be the upshot of this leak and that the loss of trust between justices and staff will be restored (and maintained).
That is the only acceptable outcome for those who prioritize the health of America’s democracy over a personal partisan or ideological agenda.
This case should establish whether the state can require creative professionals and businesses to send messages even if it does not express antipathy to the professional or business beliefs.
It’s easy to follow the path of viewing someone who disagrees with you as short on intelligence or morality. It takes depth of character to take the road less traveled.
There needs to be a way to correct decisions at odds with the underlying laws being applied. The court can and does have options to prevent (or correct) this type of result.