The Destruction of the Supreme Court

AP Photo/Andrew Harnik

I find it an amusing coincidence that, on the day students in AP U.S. Government and Politics across the country took their end-of-year exam, arguably the biggest scandal in Supreme Court history broke.

That scandal, the leaking of what appears to be an authentic initial draft opinion on the controversial Dobbs case, has left many in the legal community aghast. Left and right, many agree that this is highly irregular and highly improper. There’s a reason it hasn’t happened before.

Whether or not a person supports Roe v. Wade or wishes it to end, we should all be terrified at the prospect of even the Supreme Court succumbing to the most primal of partisan bickering. The leaking of the draft opinion, which is in no way the final decision of the Court but a good indicator of where it’s headed, marks the end of cordiality between judicial philosophies as exemplified by the friendship between Ruth Bader Ginsburg and Antonin Scalia.

We do not know who leaked the document, but we can hazard a guess that it’s a liberal staffer terrified of the prospect of Roe being overturned and wanting a loud, public backlash to scare the conservative members of the Court into reversing their vote. Any other scenario makes little sense — why would a conservative justice’s staffer leak this? Why would conservatives destroy their credibility to leak something that is set to happen?

If this document holds up, it’s clear Roe is doomed. Even if Chief Justice John Roberts were to side with the liberal justices (which I highly doubt), it’s still 5-4 in favor of overturning the landmark abortion case. But up until now, I was convinced it was 6-3 with Roberts writing a concurring opinion calling for a less sweeping decision.

Chief Justice of the Supreme Court, John Roberts
Erin Schaff/The New York Times via AP, Pool

Many on the right have taken to social media, worried that this leak will pressure Roberts into switching his vote. But the very reason that they fear he might is actually the reason he won’t.

Roberts is pro-life. His wife is a longtime pro-life activist. But there is only one other issue he is just as passionate about — the sanctity of the Court. Someone violated that sanctity. They violated the trust and independence of the nation’s highest court in order to force a political decision. Where some see Roberts caving because of this, I see him outraged and joining more forcefully with the conservatives. He cannot be seen as so weak and easily swayed as to join the losing side of the argument because someone tried to pressure him into it.

If this leak is genuine (and as of the moment I’m writing this, everyone seems to think it is), then it is the destruction of an institution and the biggest news story of the week and month, and even the year so far. Someone’s head will roll. Either some staffers will be fired if it was determined to be one of them, or a Justice will be pressured internally into stepping down.

This is a volatile situation. The Supreme Court was immediately barricaded after the POLITICO report came out. It’s almost as if everyone is expecting strong demonstrations to follow it.

It cannot be stressed enough that just as conservatives see life as sacred and precious, we must all seek an independent judiciary to be as such. Anything less renders it little more than a tool of political parties. And while you may argue the partisan nature of the process, you cannot argue that the Court’s independence is its most valuable attribute.

The decision to jettison Roe v. Wade is going to be debated for decades to come. But we should also be horrified at what has happened here. Someone with a political agenda, on the eve of primaries across several states, made sure a friendly news outlet got the draft and ran with it. Careers will end over it, but the damage will be done. The sanctity of the Court has been thoroughly violated.

For all the shouting about the destruction of norms under Donald Trump, you don’t find too many people screaming about it here. I wonder why?