Chief Justice John Roberts said that the leak of the draft opinion striking down Roe vs. Wade is a betrayal of the confidences of the U.S. Supreme Court.
The draft opinion, like other draft opinions that are written to reflect the will of the majority, was written by Justice Samuel Alito and was being circulated among the justices for review prior to finalization. The leak appears to critics as an act of political sabotage intended to persuade one or more of the justices into changing their position on the question of whether Roe vs. Wade, the 1973 abortion legalization decision, will be overturned.
If it is overturned, it returns the matter of abortions to the states, where Legislatures would make the decision about how far into pregnancies abortions can be performed. Currently, the Roe vs. Wade decision has vast control over that question.
Roberts issued a statement today:
“To the extent this betrayal of the conﬁdences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts wrote.
“We at the Court are blessed to have a workforce — permanent employees and law clerks alike — intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the conﬁdentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.
“I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
On Monday, Politico published a copy of that draft opinion by Alito, and Justice Roberts confirmed the document is authentic. But it doesn’t necessarily represent the final opinion or position of the members of the Court. Initial votes can change as the wording of draft opinions circulate among the justices. The Supreme Court is expected to release the final decision this summer.
There were five votes to overturn Roe vs. Wade, according to the document. One is possibly uncommitted, which would explain why an employee of the court would choose to release the draft opinion, in the hopes of creating social unrest that would sway that one justice — likely Roberts — into voting against the initial opinion. The leak was a way to crowdsource the intimidation of the justices in terms of their physical safety and the safety of their families. On Monday, barricades were erected around the Supreme Court and protesters from both sides of the abortion debate gathered, noisily.
Sen. Lisa Murkowski said the leak is “absolutely reprehensible and needs to be condemned in the strongest possible terms. I really find it shocking that this would happen. I understand that it is unprecedented. Second point is Roe is still the law of the land. We don’t know the direction that this decision may ultimately take but if it goes in the direction that this leaked copy has indicated, I would just tell you that it rocks my confidence in the court right now.”
President Biden will likely come under increased pressure from the Left to pack the Supreme Court, as he tried to do earlier in his presidency. Whether Murkowski was signaling that she might go along with that court packing as a result of this decision is unclear, but Sen. Joe Manchin, a Democrat who opposes abortion, is so far holding against court-packing.