The Breach of the Supreme Court's Trust Betrays All of Us | Opinion

In one way, what appears to be the leak of a working draft opinion in the Supreme Court's pending abortion case breaks no news at all. Most Court-watchers have been expecting that, in Dobbs v. Jackson Women's Health Organization, a majority of the Justices would not only uphold Mississippi's law limiting later-term abortions but would state clearly that the earlier decisions in Roe v. Wade and Planned Parenthood v. Casey were "egregiously wrong" and should be abandoned.

The Supreme Court did not take the case merely to agree with the lower court, the thinking goes, and the oral arguments confirmed the more conservative Justices' skepticism about the sweeping abortion right that was declared—or invented—nearly 50 years ago. What appears to be a leaked draft authored by Justice Samuel Alito sets out clearly the arguments against Roe, and in favor of its abandonment, that are familiar to Court observers and legal scholars. Those arguments go like this: correctly understood, the Constitution permits legislatures to enact reasonable regulations of abortion, as they did for centuries; the Court erred badly when it took this issue away from the democratic process and substituted its policy preferences for the laws of every state; there are no good reasons to stand by a mistake that has caused such damage to our political discourse and processes.

Although many politicians, officials and activists took to social media to condemn, or celebrate, the leaked draft's contents, most of these reactions should be seen as performative and partisan—as efforts to massage a narrative, and perhaps to raise some money in the process.

It is not known, yet, who is the source of the leak, what were the leaker's motives, whether the draft opinion reflects the Court's final decision or what will be the revelation's electoral or political fallout. Nor is it clear what the legal or other consequences would be, if the leaker were identified. In any event, though, for an employee or member of the Court to intentionally leak a draft opinion is a gross betrayal of trust, particularly if the leak were an effort to advance partisan aims or to undermine the Court's work and legitimacy. Whatever our views on particular legal questions—even questions as important as those presented in Dobbs—we should all hope that the Justices will not be swayed or influenced by such efforts.

The Supreme Court of the United States is a crucial institution in the American constitutional order. Certainly, it is not perfect. The Justices have made and will keep making mistakes; reasonable criticism of the Court is entirely appropriate. Still, the American experiment presumes and requires a meaningfully independent judiciary, one that is charged with maintaining the structure of government, and enforcing the boundaries on government, that "We the People" established.

Supreme Court
WASHINGTON, DC - MAY 03: TV camera crews station in front of the U.S. Supreme Court Building on May 03, 2022 in Washington, DC. In an initial draft majority opinion obtained by Politico, Supreme Court Justice Samuel Alito allegedly wrote that the cases Roe v. Wade and Planned Parenthood of Southeastern v. Casey should be overruled, which would end federal protection of abortion rights across the country. Anna Moneymaker/Getty Images

The Court's role in our constitutional democracy requires, among other things, that the Justices provide reasons for their rulings, not only to litigants, lawmakers and lower courts, but also to citizens. And for the Court as a group to engage in reasoned decisionmaking, it needs to maintain candor and confidentiality.

All Court employees know about, and agree to, their obligations of confidentiality. Law clerks, past and present, know of incidents when those obligations were violated and when sensational "tell-all" books and articles distorted the public's understanding and undermined the Court's standing. No Court employee can imagine that he or she is somehow heroic for violating these duties. Such arrogant grandstanding is not only a breach of an employment agreement; it is also a betrayal of public trust, and harms all of us.

The betrayal in Dobbs was not the first such incident, and—unfortunately—it will not be the last. But it should not be welcomed or excused by anyone, regardless of one's position on abortion rights and regulation. Institutions matter, and they are bigger than particular people, questions or controversies. And, as many have noted, our institutions have been having a tough time lately. It is too common, as Yuval Levin and others have explained, for individual players to treat them as vehicles for personal advancement or promotion, rather than as part of our shared inheritance.

The Court should, and probably will, confess and correct its grave errors in Roe and Casey. And, after that, we will continue to debate and divide over the regulation of abortion and over our moral obligations to the most vulnerable among us. But notwithstanding our sharp disagreements and our increasingly poisonous polarization, we should condemn and reject attempts to intimidate and undermine our courts.

Richard W. Garnett is the Paul J. Schierl/Ft. Howard Corporation Professor of Law at the University of Notre Dame.

The views expressed in this article are the writer's own.