Perspective: The Supreme sieve

Leaking any Supreme Court case is unprecedented. But having the most important case in half a century escape early is corrosive to the nation’s highest court

As the saying goes, this is why we can’t have nice things.

First, the news. Monday evening, Politico published an alleged draft of a Supreme Court opinion that would overturn Roe v. Wade and hold there is no constitutional right to abortion. According to Politico’s anonymous source, five Supreme Court justices are voting to overturn Roe, three justices are voting against, and Chief Justice John Roberts’ vote is unknown.

The arguments in the alleged draft are unsurprising if you follow the abortion debate. Justice Samuel Alito writes that there is nothing in the Constitution about abortion. There was never a tradition acknowledging a right to abortion, and 30 states prohibited abortion when Roe was decided. Abortion always should have been left to the states’ democratic processes, and the decision to constitutionalize it at the federal level has warped our law and politics in countless ways. As to Roe’s reasoning, the opinion quotes John Hart Ely’s famous dictum that, although he supported abortion, Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”

What does this mean? Legally, nothing. The opinion has not been published, and the justices are all free to change their votes — in fact, since the opinion is dated Feb. 10, some justices might already have changed their votes, though Politico’s source says otherwise. Despite the leak, court-watchers will keep checking the docket daily, waiting to find out whether Roe will survive.

But what does this mean practically?

Practically, it means the Supreme Court joins the long list of American institutions betrayed at a crucial moment by someone who cared less about the institution than a personal agenda.

Alone among the federal government’s branches, the Supreme Court has had positive approval ratings for most of its modern history. In contrast, recent presidents’ approval generally starts around 50% and wanders downward from there, while Congress’ popularity falls somewhere between traffic jams and norovirus.

Related
What overturning Roe v. Wade would mean for Utah
Did Roe v. Wade help or hurt religious freedom?

But it’s not just approval. More than either of the other branches, the federal courts work. They provide a forum where millions of cases can be filed annually, generally with confidence that the case will be decided on the merits and not based on who went to school with whom or who contributed to whose campaign. And that confidence is generally justified — in my (brief) years of legal practice, I have seen federal judges make a few less-than-perspicacious decisions, but never a less-than-honest one. Every judge I have ever known cares a great deal about getting things right, even while most of them acknowledge how hard it can be.

And look at the Supreme Court, addressing many of America’s most contentious political issues calmly, laying out its reasons in carefully researched and exhaustively argued opinions, trying to keep the law predictable, understandable and coherent; knowing that what it says today may be quoted against it tomorrow in a case it wants to decide the other way. Perhaps it shouldn’t be deciding some of these issues (I certainly think so), but isn’t it remarkable that it can decide them with so few lies and insults, so little pandering and dissembling, and so much rational argument when compared to its neighbors across First Street?

It can do this not because the justices are saints, but because they belong to an institution that protects and encourages good behavior. It has natural advantages over Congress in this respect — its members do not face reelection, etc. — but it has worked to make the most of its advantages. It refuses to televise its oral arguments, preventing justices from clowning for the cameras. It continues to announce its decisions in long, dense opinions that relatively few people have the patience to read. Its members socialize with each other across ideological lines and, most importantly, its deliberations are kept secret. When justices tell each other their reasons for a vote, they can do so honestly, seeking to persuade each other and not to win favorable news coverage.

Except, apparently, in this case.

Politico reports this is the first time in the modern era that a Supreme Court opinion was leaked to the press before publication (though admittedly leaks of other sorts have occurred off and on for many years). The leaker’s identity and motives will be debated for days or perhaps decades; Politico, honoring the principles of its own institution, will likely give greater respect to its source’s confidentiality than he or she gave to the court’s.

That said, most commentators suspect the leaker is trying to change the case’s outcome. Perhaps the leaker means to give abortion rights activists one last chance to pressure the court, or perhaps the leaker is engaged in reverse psychology, hoping the justices in the majority will stick to their guns so it doesn’t look like they were pressured. Either way, the leaker decided the court’s rules and the justices’ mutual trust were less important than winning the abortion issue — in short, the leaker was willing to damage the Supreme Court as an institution for the sake of a single case.

And perhaps you agree this particular case is worth it. But that’s the thing about cases: Lots of them are worth it to someone. With the precedent now established and the leaker unlikely to face serious consequences, how long will it be until another opinion is leaked? Until lower courts start leaking their own controversial opinions?

And how many cases will the courts get wrong because the judges couldn’t trust each other enough to talk about them?

All is not lost. The Supreme Court cares enough about itself as an institution that it will undoubtedly take measures, even if we never hear what they are. Its justices and staff take real pride in the roles they play. If they say “never again” with enough feeling, it may just come to pass.

Today, though, I’m in mourning. We’d be fools to design a system of government that depends on everyone in government behaving well, but can any government function when no one does? If we’re not careful, we might find out.

Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients