Following Monday’s leak of the draft Supreme Court opinion overruling Roe v. Wade, a debate broke out on cable news and social media: how much attention should be given to the fact of the leak, compared to the substance of the opinion? In other words, does the leak story distract from the massive implications of the decision itself, which will take reproductive rights away from millions of women?
The scale of the leak, which was published by Politico, is unprecedented in the modern history of the Supreme Court. But the Court has dealt with leaks before. In fact, news publications got two major scoops during the Court’s deliberations over Roe v. Wade — the same decision that Alito’s draft would overturn — before the final opinion was released in 1973.
The first was in 1972, when The Washington Post published a memo that Justice William Douglas had written to his colleagues exposing his thinking on the case. And the second was in January 1973, when Time Magazine ran a story about the outcome of the case before a ruling was issued. (Since Time was a weekly publication, the scoop was published just hours before the opinion was released to the public.)
The timing of Monday’s leak created almost breathless speculation about the source and motivation of the leaker. Was it a liberal clerk hoping to act as a kind of whistleblower? Was it a conservative strategy to lock in a fragile majority to overturn Roe? Some of the more outlandish theories suggested that it was Chief Justice Roberts himself, hoping to incite public backlash and scare his fellow conservative justices out of taking this dramatic step to roll back reproductive rights.
As Court watchers and legal analysts shared various hypotheses, a partisan dynamic began to emerge: Republicans, some of whom had for decades campaigned against Roe, began to harp exclusively on the leak. Sen. Lindsey Graham called the leak “the saddest chapter in the history of the Supreme Court.” Sen. Ted Cruz said it was “the most egregious breach of trust at the Supreme Court that has ever happened” and called for the leaker to be “fired, prosecuted, and [made to] serve real jail time.”
The rhetoric on the right caused some political commentators, including conservative campaign strategist Rick Wilson, to speculate that the leak was an intentional attempt to manufacture outrage — a potent political tool — at a time when conservatives would otherwise be celebrating. Wilson tweeted, “[T]he usual suspects in the right-wing media…were on EXACTLY the same outrage “HOW DARE YOU SIR!” tone and message.”
For his part, Chief Justice John Roberts called the leak a “singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” adding that it seemed intended to “undermine the integrity” of the institution.
Constitutional scholar Lawrence Tribe, a longtime professor at Harvard Law School, pointed out that the public did not hold the Court in high standing well before the leak or the decision. In an interview with the Harvard Gazette, Tribe said: “[The Court] seems to me it’s more damaged by the obviously partisan divisions within the court…The legitimacy of the court ever since Bush v. Gore has been teetering in various ways, and I think the leak itself just reaffirms people’s view that the court is subject to lots of infighting and maneuvering.”
Democrats, meanwhile, focused on the implications of the decision. Speaker Nancy Pelosi called the draft ruling “an abomination, one of the worst and most damaging decisions in modern history.” Vice President Kamala Harris said: “Some Republican leaders are trying to weaponize the use of the law against women. How dare they? How dare they tell a woman what she can and cannot do with her own body.”
Joyce Vance, who broke down the decision at length with Preet on Tuesday’s episode of CAFE Insider, tweeted: “The leak is a fascinating story about dysfunction at an increasingly politicized court. But don’t confuse it with THE story, which is taking away Constitutional rights from women.”
Do you agree with Joyce? What do you think the political impact of the leak has been? To what extent should we focus on the leak at all? Write to us with your thoughts and reactions at firstname.lastname@example.org.