The leak of the draft Dobbs v. Jackson Women's Health majority opinion has done tremendous damage to the Supreme Court—damage that may well be irreparable if the leaker isn't found and disciplined. The Court simply can't operate if Justices can't trust their colleagues, clerks and staff. "When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally," explained Justice Clarence Thomas. "You begin to look over your shoulder. It's like kind of an infidelity, that you can explain it, but you can't undo it."
And yet, the professors, politicians and pundits who have most bemoaned the Court's loss of "legitimacy" in recent years are oddly sanguine about this unprecedented betrayal, if not cheering on the mob that it spawned. Senator Mark Warner (D-Va.) remains the only Democratic official to have condemned the leak, while the Biden administration encouraged (mostly?) peaceful protests. Georgetown law professor Josh Chafetz even defended going to Justices' homes because fences had been put up outside the Court, while legal analyst Ian Millhiser called the leaker a "hero" and an MSNBC commentator offered him (if it's a man) sex as a reward.
Those lamenting the loss of norms when it came to Donald Trump's Twitter account were abjectly silent, if not gleeful, at the attack on the rule of law that the Dobbs leak represents.
Whatever one's views on Justice Samuel Alito's draft opinion or abortion policy, this leak hampers the Court's ability to function as an independent check on government action—and ultimately as a break against the waves of might-makes-right populism from both Left and Right. If judicial deliberations are as visible as the kabuki theater of congressional hearings, if opinion drafts are subject to Wiki-like edits in real time, if the media covers legal controversies like electoral horseraces, courts become little different from the legislatures they're meant to police.
Legal scholars across the ideological spectrum have long claimed that the Supreme Court is just one political institution among many, but removing any formal distinction between law and politics has grave consequences. A system of government premised on the need to secure and protect individual liberty won't last if people believe that the rule of law is a sham and that liberty is whatever the majority says it is—until the next majority reverses that decision.
That's why even those who are passionately pro-Roe v. Wade should be appalled by this leak. It's one thing to disagree with a ruling and demonstrate against it when it's handed down, quite another to disrupt its production. And that remains true whether the leaker is from the Left—as is more likely, looking either to swing a wavering Justice or unleash chaos in frustration—or the Right. The Court will cease to function if, every time there's a politically fraught case, Justices have to communicate in person or circulate hard-copy drafts that are secured like the nuclear football. Beyond "culture war" cases, what about billion-dollar class-action and securities disputes that can move global markets?
Alas, the leak seems to be just the latest example of provocation arising whenever the Court is poised to depart from progressive orthodoxy. Take what several senators led by Sheldon Whitehouse (D-R.I.) did in a 2019 Second Amendment brief, urging the Court to "heal itself before the public demands it be restructured." Or what then-Senate Minority Leader Chuck Schumer (D-N.Y.) said to Justices Neil Gorsuch and Brett Kavanaugh before a 2020 abortion argument: "You won't know what hit you if you go forward with these awful decisions." These are calls for mob justice that should be uniformly rejected, particularly by progressives who in other contexts pooh-pooh conservative complaints about judges' legislating from the bench.
Indeed, if the January 6 riot was the ur-threat to democracy, then the Dobbs leak was its judicial companion, pushing otherwise sensible people to argue that the ends justify the means, impugning a sacred trust and even violating federal law against intimidating judges.
Of course, the Left still maintains that the current Supreme Court majority is illegitimate. If Gorsuch is an illegitimate justice because he "stole" Merrick Garland's seat, Kavanaugh's illegitimacy comes from eleventh-hour sexual-assault allegations and Amy Coney Barrett is tainted for having been confirmed so close to a presidential election. And that's not to mention that all these jurists were supposedly selected to give Donald Trump some sort of newfangled immunity (which he hasn't received).
But the question remains: do you want more January 6ths or fewer? Do you want courts to be subject to mob pressure and thus not be worth respecting?
The only measure of the Court's legitimacy that matters is the extent to which it maintains (or rebalances) our constitutional order. The reason for these legitimacy disputes isn't that the Court is partisan, but that it can't be divorced from the larger political scene, and sometimes Justices seem to make decisions for strategic purposes, not based on their legal principles. The public can see through that; it's when justices think about "legitimacy" and try to avoid political controversy that they act most illegitimately.
What would really help secure the Court's reputation is an ultimate Dobbs decision that mirrors the leaked draft and comes out quickly. Anything else would encourage even more leaks and a further loss of institutional trust.
Ilya Shapiro is author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, which comes out in paperback in July.
The views expressed in this article are the writer's own.
