Tuesday, 05 Dec 2023

After Roe Leak, Supreme Court Starts to Resemble Other Branches

After Roe Leak, Supreme Court Starts to Resemble Other Branches

WASHINGTON — The Supreme Court used to be a magisterial temple of silence, capable of guarding its secrets until it was ready to disclose them. It leaked less than intelligence agencies, old hands in Washington would say, in a tone of awe and envy.

Members of the court, too, took pride in running a very tight ship.

“Those who know don’t talk,” Justice Ruth Bader Ginsburg used to say. “And those who talk don’t know.”

Now, as the court appears to be on the cusp of eliminating the constitutional right to abortion, it looks sparsely different from the other branches: Rival factions leak and spin sensitive information in the hope of gaining political advantage, at the cost of intense scrutiny of internal operations and questions about whether its decisions are the product of reason or power.

“The court is now no better than the other institutions of government,” said Sherry F. Colb, a law professor at Cornell.

The bare-knuckled partisan fights over recent Supreme Court confirmations appear to have followed the justices to their chambers. The disclosure of a draft opinion that would overrule Roe v. Wade, along with related reports of the court’s internal workings, has transformed a decorous and guarded institution into one riven by politics.

Melissa Murray, a law professor at New York University, said the developments could only damage the court’s stature.

“The series of leaks violates the omertà that traditionally has shrouded the court’s deliberations,” she said. “To the public, this not only looks like the kind of maneuvering that we’ve come to expect from politicians, it also strips the court of the mystique it has generally enjoyed.”

The justices are scheduled to meet in a private conference Thursday morning, their first meeting since Politico published a draft opinion last week that would overrule Roe v. Wade, the 1973 decision that established a constitutional right to abortion.

As at all such conferences, no one else is allowed to enter the room. The idea is to do everything possible to shield the privacy of the justices’ deliberations.

That idea has been undermined by a series of disclosures that appear to be happening in almost real time.

They started in a carefully couched and conditional but nonetheless knowing editorial on April 26 in The Wall Street Journal. It expressed concern that Chief Justice John G. Roberts Jr. was trying to persuade Justices Brett M. Kavanaugh and Amy Coney Barrett to join him in upholding a Mississippi law that bans most abortions after 15 weeks but to stop short of overruling Roe outright.

“Our guess,” the editorial said, was that Justice Samuel A. Alito Jr. would be assigned the majority opinion if the chief justice did not gain an ally. Good guess.

The Politico bombshell followed six days later. In addition to posting the draft opinion, which was dated Feb. 10, Politico reported that five members of the court — Justices Alito, Kavanaugh, Barrett, Clarence Thomas and Neil M. Gorsuch — had voted to overturn Roe shortly after the challenge to it was argued in December.

“That lineup remains unchanged as of this week,” Politico reported last week. On Wednesday, it provided an update: “None of the conservative justices who initially sided with Alito have to date switched their votes.”

The court issued an unusual statement the day after the disclosure of the draft opinion.

“Justices circulate draft opinions internally as a routine and essential part of the court’s confidential deliberative work,” the statement said. “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the court or the final position of any member on the issues in the case.”

The court’s deliberations mostly happen in writing, through the exchange and refinement of succeeding drafts of majority, concurring and dissenting opinions. If that process breaks down, the quality of the court’s work can only fall.

“The justices are supposed to reason to outcomes together and defend positions in writing on the assumption that minds can change and logic can be refined in the process,” said Allison Orr Larsen, a law professor at William & Mary.

“That special brand of collective decision making requires internal trust — trust to change one’s mind, trust to adopt and circulate tentative conclusions and trust that your colleagues are genuinely engaging with you,” she said. “There is no doubt in my mind that this trust has taken a serious and damaging blow over the past week.”

The fact of the leak is less important, of course, than what the court will ultimately do in the coming weeks.

“The legal world — judges, law professors, lawyers, other court watchers — are fascinated and disturbed by the leak of the draft opinion and subsequent revelations,” said Tara Leigh Grove, a law professor at the University of Alabama. “But I think the general public is likely to care far more about what the court actually decides.”

Those two things are hard to disentangle, though, in thinking about the future of the court.

“To leak an entire opinion is to act as if norms and rules no longer matter,” Professor Colb said. “Outcomes are everything, precedent be damned. In a way, leaking a confidential document is a perfect metaphor for the court’s disregard for privacy.”

Professor Grove said the disclosures will diminish the court’s standing and its ability to function.

“The leak poses a long-term legitimacy problem, even with respect to the general public,” she said. “Deliberation among the justices is one of the most important parts of the Supreme Court’s work.”

She added: “To the extent that this leak undermines that deliberative process — by making the justices less inclined to have that exchange, share drafts, etc. — that could lead, in the long run, to less careful and perhaps less moderate decision making at the court.”

The court has long benefited from a sense of mystery, Professor Murray said, recalling a remark from Walter Bagehot, the Victorian political essayist, about the British monarchy.

“We must not let in daylight upon magic,” Bagehot said.

The court has in the past weeks been flooded by daylight, making it look disturbingly ordinary.

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