On Monday night, the American news website Politico dropped a media bombshell: a draft majority opinion from the Supreme Court of Justice (SCJ) obtained by that outlet revealed that the Court was ready to overturn Roe v. Wade, the historic decision that legalized abortion in the United States in 1973.
The leak of a judicial opinion long-awaited, unprecedented in modern history, sparked a political firestorm in Washington and protests across the country.
Democrats denounced the leaked draft decision as “the biggest restriction of rights in more than 50 years” and vowed to pass legislation to protect abortion rights. Republicans applauded the opinion written by conservative Justice Samuel Alito while accusing the “radical left” of “bullying” the Supreme Court judges.
In a city where the executive and legislative branches of government routinely leak information to the press, the Supreme Court has long enjoyed a reputation as one of the few relatively leak-free institutions.
And although some recent internal deliberations of the tribunal superior have been released to the press, never before has a draft opinion been leaked in its entirety before its announcement.
Chief Justice John Roberts, who Politico said had yet to endorse the majority opinion of Alito and four other conservative justices, issued a harsh condemnation of the leak.
“This was a singular and egregious violation of that trust which is an affront to the Court and to the community of public servants who work here,” he said in a statement.
At the heart of the Supreme Court case is a law of Mississippi Banning Abortions after 15 weeks of pregnancy. During oral arguments in December, the court’s conservative justices appeared willing to uphold the law without indicating they were united in overturning the 1973 decision.
Here are some of the most frequently asked questions about the Supreme Court leak:
How rare are leaks of Supreme Court decisions?’
Extremely rare. The court keeps its deliberations and internal proceedings confidential to protect judges from public pressure.
Yet while the opinions of the courts have not percolated into modern times, unauthorized publication of court decisions and deliberations dates back to the mid-19th century, according to University of Georgia media law professor Jonathan Peters.
In 1852, the New York Tribune reported the outcome of a court decision 10 days before it was officially announced, Peters tweeted Monday night.
In 1972, The Washington Post reported with details of the internal deliberations of the court in the case Roe v. Wade before the judges announced his decision.
And in 2012, CBS News reported how Justice Roberts initially sided with the conservative wing of the CSJ before voting to uphold key provisions of the Affordable Care Act.
But those leaks pale in comparison to what Politico was given, experts say.
“There have been leaks in the past of how a case might turn out for some internal court deliberations. But in terms of a 98-page majority opinion completely baked with citations, with all the annotations of what a Supreme Court opinion looks like and the result, this has never happened before,” said Gabe Roth, executive director of the nonpartisan organization Fix the Court.
Who could have leaked the document?
In a statement, Roberts directed the US Supreme Court Marshal, the court’s internal police force that protects the judges and the building, to investigate the leak. Colonel Gail A. Curley is the current Marshal.
Sarah Parshall Perry, senior legal scholar at the Heritage Foundation, a conservative think tank, told VOA that the internal police of the Supreme Court have “all the authority to enforce federal and District of Columbia laws that may have been broken by this leak of an opinion.”
But Roth is skeptical that the culprit can be exposed.
Between 50 and 100 people could have had access to the leaked document, including the nine judges, 37 administrative employees, building staff and security guards, he said.
“I don’t know if we’ll ever get to the bottom of who might have leaked the copy to Politico,” Roth told VOA.
Was a crime committed?
It is unclear if the leak involved any criminal violations. If an authorized person accessed and leaked the court document, the charges could involve the theft of government property, but there is no indication that a person authorized to access the document shared the draft with anyone. Politico.
However, Supreme Court opinions, unlike many other government documents, are not classified, but the court’s deliberations and draft decisions are understood to be confidential, Perry said.
Also, leaking a draft opinion for the purpose of influencing judges could be a “serious offense,” said Richard Painter, a former White House ethics czar who is now a law professor at the University of Minnesota.
If a Supreme Court justice was involved in the leak of the document, he or she could face impeachment by Congress.
Only one judge, Samuel Chase, in the early 19th century, has been removed, but none have been convicted and removed from the bench, according to Roth.
How will the leak affect the Court’s reputation?
The leak comes at a time when public confidence in the Supreme Court and the judiciary in general, long seen as an impartial branch of government, has fallen to historically low levels. A Gallup poll released last September showed that just 40 percent of Americans approved of the job the CSJ was doing, the lowest level since the organization began tracking the trend in 2000.
Recent partisan fights over Supreme Court nominations, as well as a series of decisions along ideological lines, have contributed to the public’s low regard for the high court, with many Americans viewing justices as “robed politicians.” experts say.
In recent months, liberal groups have accused conservative Justice Clarence Thomas of ethics violations and called for a congressional investigation following revelations that his wife, a Republican activist, had urged the White House to challenge former President Donald Trump’s defeat. Trump in the 2020 elections.
“This is not the first ethics issue this court has had,” Painter said of the leak.
Still, he said it could further damage the court’s reputation.
“I think it’s very, very damaging to the reputation of the Supreme Court that the environment has become so politicized that people are willing to leak a draft opinion,” Painter said.
Will the public outcry change the final decision?
Highly improbable.
In a statement, Roberts said the leaked document “does not represent a decision of the Court or the final position of any member on the issues in the case.”
While justices sometimes change how they vote on a case, some experts say the leak has made it more unlikely that the five conservatives on the court will back down from their apparent support for overturning Roe v. Wade, along with a 1992 case, Planned Parenthood v. Casey.
Supreme Court justices, Painter noted, “never want to be perceived as bowing to public pressure.”
In recent months, Roberts was widely believed to be seeking a middle ground that would support the law without overturning Roe v. Wade. But after the leak, he may join the other conservatives on the court in overturning the decision, Perry said.
“He tried to find a middle ground,” he said. “We could, for example, see a 5-3-1. But based on their very scathing statement that this is not going to have an effect on the way they are managing, I am inclined to believe that we could have won the Chief Justice Supreme Roberts, when before this leak, we might not have.”
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