SCOTUS draft leak: Should person responsible be penalized?
- Abortion was legalized nationwide following the 1973 Supreme Court Roe v. Wade and Doe v. Bolton decisions. Since then, there have been roughly 62 million US abortions.
- POLITICO released a leaked 98-page draft written by Justice Samuel Alito noting the majority of the Supreme Court had voted down Roe v. Wade with a statement, “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences” However, the court ruling will not be finalized until the next two months.
- The following day, the Court confirmed the leaked document’s authenticity with Chief Justice John Roberts calling the leak a “singular and egregious breach of that trust that is an affront to the Court” while directing the Court’s Marshal to “launch an investigation into the source of the leak.”
- A February 2022 Pew Research Center poll found that American adults approve of the Supreme Court by 54% while 44% have an unfavorable view. Favor of the court has dropped by 15 percentage points over the past three years, with most change from Democrats.
- The 2021 Mississippi court case was the catalyst to challenging Roe v. Wade before SCOTUS. Attorney General Lynn Fitch defended the state’s ban on abortions after 15 weeks gestation, stating, “nothing in constitutional text, structure, history, or tradition supports a right to abortion.”
While publishing the seemingly imminent overturn draft of Roe v. Wade is incredibly huge news, leaking this type of information hasn't yet been determined a crime. This isn't an example of an official with access to classified documents leaking them to the public. Activists on both sides of this issue are finding this leak helpful, as they can prepare their respective responses in advance rather than being blindsided by such a major judicial decision. We cannot and should not invent punishments for non-crimes just because certain people find them inappropriate.
An important question to consider is who is to blame in this situation? Is it actually the person who leaked the document, or is it some procedural failure that allowed lapses in security for these sensitive files? Was there enough vetting of support staff, and were these documents properly encrypted? Although it’s easy to blame an individual, the reality is that robust security protocols are put in place for a reason; not everyone working in government offices has the same level of vetting and security clearance. Punishment is individual, yet this situation seems like a structural failure at many levels.
Finally, the person(s) behind this leak may find their career prospects having significantly diminished if this covert operation is discovered, or they may find their courage rewarded. Punishment calls simply aren't warranted when a certain amount of variability played into this document leak and the diverse responses to this action are leaving even women divided on the issue. While the drama of a SCOTUS decision being rendered early is exciting, the reality this impending decision will have on many Americans is what should be the focus, not how or who revealed the decision.
The recent draft leak from SCOTUS potentially overturning Roe v. Wade is unprecedented and was most likely meant to accomplish two things: one, riling up abortion activists, with perhaps the intent of it becoming vicious enough to sway a justice to change his or her vote and, two, to motivate congressional Democrats to pass legislation codifying abortion in federal law. If so, this further solidifies the belief that the ends can justify the means—that it's acceptable to do something wrong if the final result is considered good.
The Supreme Court’s role is to determine if a law violates the Constitution. That's it. Citizens may disagree with a ruling, sometimes vehemently. Nonetheless, outside influences are not relevant in a SCOTUS decision and thus should not be taken into consideration when the Court rules. As Cornell Professor Jared Carter contends, the Supreme Court is shielded and intentionally kept secret to keep politics out of it. One of the goals of the Left over the past several decades is to politicize everything—from television shows people watch, to brands, to even policing free speech on social media.
The trust between justices and law clerks is supposed to be sacrosanct. This leak is a major violation of that trust. If or when the leaker is identified, punishment, including, but not limited to, immediate termination or criminal prosecution, should be swift. Although this may be unprecedented, and there may not be specific laws to address it, this serious offense must be dealt with accordingly. The punishment must be severe enough, not just to punish the offender but also to act as a deterrent to discourage anyone from ever trying to do the same thing in the future. The sanctity of the Supreme Court may depend on it.