Local attorneys share opinion about U.S. Supreme Court Roe Vs Wade leak

May 4—PRINCETON — Members of the local legal community shared their concerns Tuesday about how the draft of a U.S. Supreme Court decision concerning the landmark Roe v. Wade case, which made abortion legal in the United States, was leaked to the media.

The leak of the U.S. Supreme Court's draft opinion in a case challenging Mississippi's ban on abortion after 15 weeks — Dobbs v. Jackson Women's Health Organization — was confirmed Tuesday by the court, according to the Associated Press.

Local attorneys spoke about the incident.

"I would be very surprised if that leak was true because of the confidential nature of our court system," Prosecuting Attorney Brian Cochran said Tuesday before the draft's authenticity was confirmed. "If it is, that's very disheartening to hear that someone would leak a judge's notes or preliminary court order. I've never heard of that happening around here."

Confidentiality is an important part of how the court system functions, he said.

"In the prosecutor's office and the judge's office, when you're making certain decisions, you have many discussions," Cochran stated. "Not with each other, but in each office and those all should be completely confidential until the final decision has been made and the final order has been entered into the court system."

Cochran said that he was certain the U.S. Supreme Court will investigate the leak. If who leaked the draft is identified, that person or persons "could be looking at some significant problems."

Many people within the Supreme Court could have handled the draft, Magistrate Mike Flanigan said.

"If the United States Supreme Court is operating like the West Virginia Supreme Court, each Supreme Court justice has essentially a team of lawyers that researches for them and helps generate their documents, so I imagine each justice has a slew of assistants," Flanigan said. "So there's actually a lot of people who have access to that knowledge and documents and how the court is going to rule, so it's not just the justices themselves who have the potential to release or leak that information. There's a lot of people on their staff, too. According to the code of judicial ethics, we are prohibited from talking about any case. As far as procedural, I could comment on that; but I would say there just a lot of people who have access to that information."

Most attorneys and judges have legal assistants who do research for them.

"There are a lot of people who would have that document in their hands or that knowledge in their hands," Flanigan stated.

What could happen to the people who leaked the draft would depend on the situation, he said.

"On the level we deal with, say like a criminal complaint or a warrant is not public record until it's been executed," Flanigan said. "And the reasoning for that is that could actually put people in danger if somebody knows that they have a warrant coming for them. Like sealed indictments, these things are kept quiet and hush hush until they are actually executed and they bring the people in; otherwise, they could be lying in wait for them. Now that could result in criminal prosecution I would believe, leaking a criminal complaint. You might be able to get some kind of obstruction charge out of that. On the national level, I actually don't know."

"I don't know if there's a criminal violation of leaking that information or not," Flanigan said. "At the very minimum, I would guess that they'd be looking for a new job."

Tracy P. Burks, chief defender with the Public Defender Corporation for the 9th Judicial Circuit, said that except for a possible leak about whether a U.S. Supreme Court justice would revise a ruling on Obamacare, he did not know of a similar instance of such a leak at the high court.

"No, something of this magnitude, this is rare. Extremely rare. and it's troublesome to me, an attorney," Burks said. "The integrity of the Supreme Court has to be maintained, and I feel that is a breach of that integrity regardless of what your political affiliation is. and then you wonder what the motives were for leaking. Is it a political motivation? Are you trying to pressure the court? What is the motivation for leaking it? Putting politics aside, I wouldn't care what the substance of the case was about. It should not be leaked for obvious reasons. Yes, it's very troublesome."

Burks was asked whether he believed the justices would have the leak investigated.

"I would hope they would, but I assume the reporter is not going to disclose who it is; so I don't know if the chief justice will get an independent law enforcement agency to come in and investigate it or not," Burks said. "My understanding is they just earlier today confirmed there was a leak, which is pretty obvious, so I don't know. This is new ground for everyone. Like I said, this is very troublesome because if this becomes the norm, it has severe ramifications; I understand they put up barriers around the Supreme Court last night when this leak broke. I'm sure there's fear of repercussions regardless of what you feel politically. So yes, because of the magnitude and the nature of what the subject matter is, this is unprecedented."

There would be consequences for the person or persons who leaked the draft.

"Oh, definitely," Burks said. "Let's say it's a law clerk. I believe their legal career could possibly be over or something like that. I don't know if they'll ever find out who did it, but if it was somebody in legal profession, yes, I believe there would be ramifications."

West Virginia Attorney General Patrick Morrisey issued a statement regarding the leak.

"The leak of the Dobbs draft opinion is absolutely outrageous on every single level. It not only undermines future U.S. Supreme Court decisions, but it's clear that the leaker wants to destroy the institution of the Supreme Court itself. Leaks like this absolutely cannot happen," Morrisey said. "This incident must be investigated thoroughly and the leaker exposed and punished for this reckless act".

"The leaked opinion is considered a draft, not a final opinion," Morrisey stated. "As such, it is premature to discuss the implications of the Supreme Court decision on West Virginia. As West Virginians know, I'm strongly pro-life and have called for the U.S. Supreme Court to overturn Roe v. Wade. In the amicus brief that we joined in Dobbs, West Virginia argued that the court should allow states to decide how restrictive they can act regarding abortion."

"When the Supreme Court's final opinion is published, we will weigh in more formally and work closely with the legislature to protect life in all stages as much as we legally can under the law," he said.

— Contact Greg Jordan at gjordan@bdtonline.com

Contact Greg Jordan at gjordan@bdtonline.com