SLOAN | SCOTUS leak sets intolerable precedent

And just like that, nothing that may be happening in eastern Ukraine matters anymore. The fentanyl crisis is a sideshow. Even Elon Musk’s purchase of Twitter no longer seems all that important.
No, the only event of any gravity is the report, by way of a leak to Politico, that the Supreme Court is set to overturn Roe v. Wade. The revelation, confirmed as accurate by a rightfully angry Chief Justice Roberts, is of a draft majority opinion authored by Justice Samuel Alito, written sometime after the high Court heard arguments in Dobbs v. Jackson Women’s Health in December, in which he elucidates on the reasoning for overturning Roe.
It is becoming impossible to comment on any contentious topic, much less Roe v. Wade and the issue of abortion which underpins it, without the discussion leading to a polarized, ideological, rhetorical bloodbath; but insofar as nothing else seems to matter, there are indeed some important issues to anatomize associated with this story, few of which have anything to do directly with abortion.
Antagonistic moral considerations aside, what ought to be of greatest concern here is not the merits of Justice Alito’s arguments, nor their result, but the undermining of the institution of the Supreme Court that was occasioned by the leak. The Supreme Court is not infallible – far from it – but its crucial constitutional role is buttressed by a practiced and deliberate aloofness.
The Court has long upheld a history of secrecy surrounding the formulation of its decisions, a self-imposed discipline that is intended to shield itself from popular political pressures. Unlike the vulgar theatrical excess often expressed in other corners of the public arena – cable news, social media, Congress, political rallies and so forth – the Supreme Court is necessarily something of a bastion of civilized circumspection and reasoned discourse. That is why proceedings are not televised. It is the one American political institution that is meant to be insulated from the boisterous political whims and pressures of the day – that foolishness is to be left to the legislative branch. This helps ensure that the SCOTUS maintains fealty to the rule of law, as opposed to the rule of man, as a central tenet. And that’s what makes the leak so egregious.
The premature leak of a draft SCOTUS opinion, regardless of the case it refers to, is an assault on the institution, akin in intent, if not scope, to the Jan. 6, 2021 storming of the U.S. Capitol. In both cases, the perpetrators harbored a contempt of the institutions that undergird the American political system – the January 6th rioters held the electoral college and the process which they believed failed in contempt; likewise, the SCOTUS leaker, one suspects, believes that the Court failed in what they perceive to be its purpose, and holds it similarly in contempt.
We know little about whomever the leaker was, but it seems reasonable at this point to assume that the malign intent was to spur the exertion of enough pressure to effect a change in the disposition of the Court, and to force an alternate outcome. This is a dangerous, and intolerable, precedent.
Chief Justice Roberts is entirely correct to call for an investigation, but asking the marshal of the Court to conduct it, as he did, is probably the wrong course – investigations are not in the court’s wheelhouse. Either Congress or the Department of Justice is the appropriate venue for conducting such a task, though the inauspicious history of congressional investigations does not fill one with a great deal of confidence that it will accomplish much. Nevertheless, the breach in institutional norms demands an adequate response.
As far as the pending decision itself goes, the American political class will be talking about that, to the exclusion of much else, for quite some time. All that really bears saying at this juncture is to define the landscape and point out what the decision does and does not do. What it does is affirm, in the opinion of the majority, that Roe has no constitutional standing, that the prior decision establishing it depended on an overly circumlocutory reading of the Constitution. What it does not do is magically make abortion illegal – it simply says that the issue of regulating abortion is one for the states, or the legislature, to decide, not the Court.
Accordingly, some states will adopt laws restricting abortion; others, like Colorado, enshrining it. Yes, that means there will be different laws in different states, but, as the French say, vive la difference.
Kelly Sloan is a political and public affairs consultant and a recovering journalist based in Denver.

