The Leak Is Good, Actually

Photo: Erin Schaff-Pool/Getty Images

The first thing to be said about Justice Samuel Alito’s draft majority opinion striking down Roe v. Wade, which was published by Politico last night, is that it represents a catastrophe for Americans in general and Americans with uteruses in particular. If we assume that some version of this opinion will ultimately be supported by at least five and possibly six of the Supreme Court’s nine justices, abortion will soon be banned in nearly half the states and significantly restricted in several others. Of those six justices, three were appointed by Donald Trump, who lost the popular vote twice, was impeached twice, and incited an anti-constitutional putsch; two were appointed by George W. Bush, who also lost the popular vote before his first term; and one, Clarence Thomas, is married to an unhinged reactionary conspiracy theorist who actively supported that aforementioned putsch. A solid majority of Americans believe abortion should be legal and reject the restrictions that will soon take effect; the stripping away of abortion rights is only possible because of a perfect storm of anti-majoritarian constitutional provisions that have divorced public opinion from the interpretation of the law.

That’s the story, which many observers saw coming when Trump appointed Amy Coney Barrett in 2020, if not earlier. So it’s striking that for so many conservative and mainstream pundits, the big takeaway last night wasn’t that Roe is all but dead, or that the country is about to be torn apart over abortion rights, or that a right millions of Americans have taken for granted for nearly half a century is about to disappear. Instead, the focus is on the reason we know all of this: because someone with access to the draft opinion leaked it to the press, in what is being characterized as an egregious and unprecedented breach of the Supreme Court’s institutional norms (even though there are, at least arguably, precedents).

The reaction to the leak has been swift and furious, and much of it has asserted without any hard evidence that it was instigated by a left-wing clerk for one of the three liberal justices as a way to bring public pressure to bear on the Court (even as some have plausibly speculated that the leaker might have been a right-wing clerk with a completely opposite agenda). “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin”, tweeted the influential SCOTUSBlog half an hour after the story broke. Marco Rubio added that “the far left” “leaked a Supreme Court opinion in an attempt to intimidate the justices on abortion.” “There is little question that this leak is designed to create threat to the life and limb of any justice who signs onto the majority opinion. Prosecution to the full extent of the law,” tweeted right-wing talking head Ben Shapiro. On her popular Substack, Bari Weiss called the leak “nothing more than the most recent salvo in our race to the bottom,” blaming a hypothetical, woke Yale Law alum for tarnishing a sacred institution. Trump said the leak was “demeaning and not good.” This morning, Chief Justice John Roberts ordered an investigation into the leak, denouncing “this betrayal of the confidences of the Court,” which he said was “intended to undermine the integrity of our operations.”

This freakout not only misses the forest (the end of Roe) for the trees (a breach of protocol), but also suggests something about the right’s mind-set on the eve of a generational triumph. To start, it’s not at all clear what law has been violated by leaking a draft opinion to the press. The breach of confidentiality may be a career risk for the leaker, but in any other branch of government, such breaches are routine. Politico, which is as mainstream a media outlet as exists, has a business model that depends heavily on leaks from White House and Congressional staffers (and their state-level equivalents) looking to push various agendas. Elected officials may or may not approve of any given leak from their offices, and some run tighter ships than others, but few are naïve enough to imagine this isn’t how the stories they read every morning are acquired. And while media critics might question the reliance of Politico and similar outlets on leaks — which in turn requires cultivating access and a willingness to carry water for all manner of cynical political actors — in a very general sense the public benefits from knowing so much about the inner workings of the executive and legislative branches.

If the objection isn’t to leaking to the press per se, nor to the legality of such leaks, then what explains its suddenness and fervency? On one level, this is just conservative elites eager to steer the national conversation away from the predictable and devastating real-world impact of the justices they’ve championed for decades; many of these people have friends, family, colleagues, and constituents who believed that Roe was never actually in danger and are now waking up, so it’s understandable why they want to shift the focus to a comparatively petty procedural drama. But if we take them at their word, the concern right now is for the legitimacy of the Supreme Court as an institution — one whose authority depends on a perception that it is apolitical, wise, reasonable, and above partisanship.

No one who has seriously followed the Court over the past few decades has any excuse for believing that, and if you lived through the 5–4 party-line decision to award the 2000 election to George W. Bush over Al Gore and still thought the Court was somehow sacred, I have an infrastructure bill’s worth of bridges to sell you. But while the elite reverence for and credulity about the judiciary was wrongheaded back then, it’s simply untenable now that a supermajority of the Court consists of trained right-wing ideologues. The repeal of Roe will be neither the first nor the last major decision this Court takes that upends laws a majority of Americans have assumed were permanent. Given Democrats’ grim outlook for this year’s midterm elections, President Biden’s persistent unpopularity, and the GOP’s extensive and largely unchecked efforts to permanently entrench minority rule in Washington, there’s no reason to think that our existing political institutions can adequately check the Roberts Court or that its composition will align any closer with public opinion on issues like abortion in the foreseeable future.

The one thing the Court apparently can’t control, however, is how much the public knows about its deliberations. The leaker — whoever it is and whatever their motivations — has done a public service, both by giving Americans who support reproductive rights a head start on mobilizing for a post-Roe legal order and by damaging the Court’s mystical aura of legitimacy at precisely the moment when it deserves to be damaged. If the Court is going to function as a partisan institution, then the public should know at least as much about how it works as we know about any other branch of government.