The Supreme Court leak is a symptom of institutional breakdown
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I didn't see it coming. When the Supreme Court heard oral arguments in Dobbs v. Jackson Women's Health Organization last year, I assumed the majority of justices would find a way to uphold a constitutional right to abortion while paring back its practical application. Such an outcome seemed consistent with Chief Justice Roberts' careful and often strained efforts to prevent the court from taking sides in major political disputes.
But that's not the way things seem to be turning out. According to a draft opinion leaked to Politico, the court is preparing to overturn rulings in Roe v. Wade (1973) and its successor Casey v. Planned Parenthood (1992). The key sentence of the draft neatly summarizes an argument that critics of those decisions (including some who were far from conservative) have been making for nearly five decades: "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…"
We don't know who's responsible for the leak, although suspicions are focused on a liberal clerk or even justice. Without prejudging the pending investigation, it's hard for me to understand what such a leaker could hope to achieve. None of the five justices who support the leaked decision are likely to change their votes. To the contrary, exposing their intentions in advance would only make it harder for to them to back down.
Advance warning might offer some political advantage to Democrats–both to fire up their demoralized base and extend the window during which this Congress could adopt countervailing legislation. But it was hardly a secret that there was at least a significant chance that the Court would overturn Roe. Because the decision would have been announced early this summer in any case, the benefits associated with an extra few weeks' notice seem minimal.
Whether the prevailing theory is right or not, the leak is yet another symptom of accelerating institutional breakdown. While they're not sacrosanct in the same way as jury deliberations, the discussions and negotiations that produce judicial rulings are supposed to be shielded from public scrutiny. One reason for that secrecy is to allow judges and their staffs the freedom to think through the arguments before settling on their final positions. In Casey, that apparently didn't happen until Justice Anthony Kennedy changed his vote after the initial conference. And even when justices maintain consistent positions, the details of their reasoning may be influenced by discussions with colleagues.
Revealing drafts or other leaks undermines this process. By subjecting preliminary discussions to public scrutiny, they make it more difficult for judges to challenge their own political or jurisprudential biases. More important, whoever released the document was originally granted access on the assumption that it would remain confidential. That includes dissenting members of the Court, who use the majority opinion to prepare their responses.
Some situations justify disclosing confidential information, but there's no excuse for violating that trust as a PR stunt. Whoever it turns out to be, the culprit should be subject to professional, and if appropriate, criminal punishment. The most likely outcome, unfortunately, is that he or she will move onto a successful career as a commentator on cable television.
Still, it's possible to understand, and even sympathize, with disillusionment about the court's pretensions to Olympian neutrality. Since World War II, the judicial branch has increasingly functioned as a kind of super-legislature that addresses substantive questions of morality and public policy as well as narrowly legal disputes. Ironically, the decision in Roe, which effectively federalized abortion policy, was a decisive step toward a thoroughly political court. Subsequent battles, from the failed Robert Bork nomination to the more recent refusal to consider Merrick Garland's nomination, revolved around that shift.
That court's political role makes it harder to sustain Oz-like secrecy. When it comes to major decisions about deeply controversial issues, it's not unreasonable to invite public information and discussion throughout the process, not merely after the matter is resolved. That's the purpose of the tortuous sequence of hearings, debates, and votes associated with Congressional legislation. And even administrative rulemaking requires periods of public comment before regulations are finalized.
The dilemma for the Supreme Court, in other words, is that its legitimacy depends on the public belief that it's above the partisan and ideological fray. But it's impossible to address the kinds of questions that the court is routinely asked to answer in a non-partisan or non-ideological way. That generates frustration, which is not entirely unjustified, that the court isn't living up to its promise of institutional independence. But heightening the personal fixation with specific justices and exposing their deliberations to public scrutiny, as this leak will tend to do, makes that promise even harder to sustain.
In an optimistic scenario, the pending decision in Dobbs could reverse that corrosive cycle. After all, it does not ban or otherwise regulate abortion but merely returns that authority to the "police power" of the states. Theoretically, the result would be a situation in which some states severely restricted the practice while others broadly permitted it, more or less in line with public opinion among their own citizens. It's hard to argue that this federalist outcome is incompatible with democracy, as abortion rights advocates often claim.
I've made a version of that argument in the past and still hope it's accurate. But it's worth considering the possibility that the leak, and the decision it prematurely reveals, could be just another step in the process of institutional decay. Driven by the demands of activists on both sides of the issue, it's unlikely that the national parties will be satisfied with punting the issue to the states. Already, Congressional Democrats are talking about legislation to build expansive abortion rights into federal law.
Democrats almost certainly don't have the votes to do that — partly because public opinion accepts abortion only in narrow circumstances. But if Republicans win majorities in Congress in 2022, and perhaps the White House in 2024, you can also expect them to try. Proposals for a national six-week abortion ban are already circulating.
If successful, such legislation would almost certainly trigger a resistance — and perhaps outright nullification — by heavily Democratic states. A Republican president who signed such measures would then face the question of how rigorously they should be enforced by federal agencies. Meanwhile, some Republican-led legislatures are considering laws that would prevent their residents from traveling to other states to procure abortions. The potential for a constitutional crisis in relations among states, as well as between states and the national government, is enormous. Questions related to these issues would almost certainly find their way back to the Supreme Court, whose personnel would remain the object of intense political energy.
The leak may be unprecedented, then, but it's more a symptom than a cause of the Court's troubles. There's simply no way a body charged with resolving deep social controversies can avoid the pressures and passions that are undermining expectations for deference and confidentiality. On paper, the apparent decision in Dobbs reverses a jurisprudential mistake that's been tolerated for too long. In the real world of American politics, it's more fuel for the fire.
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