A Leaked Opinion
On May 2, 2022, the news website Politico published a leaked draft United States Supreme Court opinion in The State of Mississippi vs. Jackson Women’s Health Organization. The draft opinion, written by Justice Alito, would if published overturn Roe vs. Wade, the 1973 decision that provided constitutional protection to a woman’s right to have an abortion.
I won’t focus on the merits of the draft opinion. Much ink has been spilled over the past 50 years debating the merits of Roe and its progeny. Abortion is a battle of absolute values – the life of a fetus and a woman’s right to control what happens to her body. While most views shared in the media about abortion are extremes on either side of the debate, my view is that reasonable people can disagree on this issue. To the extent reasoned argument ever changes viewpoints (an assumption I’m increasingly skeptical of, at least in polarized 2022 America), abortion is not a leading candidate for believers in the power of persuasion.
In the immediate aftermath of the leak, many comments online, from journalist articles to citizen posts, hinted that the the leaker was most likely a disgruntled clerk or other staffer within the Supreme Court angry about the possible decision. Other thoughtful comments have suggested that perhaps the leaker supported the draft opinion, and wanted to make it difficult for any justice to change her or his mind on the case without creating the appearance that the shift in view was in response to political pressure and public opinion.
Chief Justice Roberts announced today that an investigation has commenced to determine what happened. The decision to investigate was an easy one, but also a very important one. The Supreme Court has vast authority in our constitutional system. The United States is a representative democracy whose laws are subject to final interpretation by a group of nine people that are unelected and appointed for life. Without going into the merits of “judicial review”, without question it is an awesome power. And it exists solely because a consensus of the citizens of this country think this power is legitimate and appropriate. Whoever decided to leak this opinion either does not understand from where the Court’s authority derives or, I fear, has decided that undermining that authority is justified by the possibility of affecting the outcome of a single case.
I wish I could view the decision to leak the draft opinion as an isolated and rogue act by a short-sited individual. But, I cannot. For me, it is further evidence of a society whose institutions and their norms are under attack, from the inside as well as the outside. We are so polarized, so angry with each other, that increasingly our behavior resembles a code of conduct we were all taught as young people to oppose: that the ends justify the means. They do not.
I’ve voted for more democrats than republicans in my life. But I am disappointed that statements coming from supporters of Roe (including a statement from former President Obama, who I admire) criticizing the draft opinion do not also criticize (or even address) the leaking of the opinion. If the Supreme Court, and by extension other courts in our country, becomes just more places where we engage in no holds barred political fighting, our democracy is even further imperiled. Courts played a critical role in stopping President Trump’s baseless claims of election fraud. Worries of post-election violence were misplaced, in part because angry citizens respected judicial decisions and the judicial process. I hope the Supreme Court investigation determines how the leak occurred, and the appropriate punishment is meted out, so that the Court can continue to represent the best of America.