Opinion: What a leaky Supreme Court means for the future of America
The Roe V. Wade draft decision may not be final, but the leak itself spreads a shadow of finality on the state of American trust.
The fallout from the leak of Supreme Court Justice Samuel Alito’s draft opinion, which could potentially overturn Roe v. Wade, continues to fall out. In the wake of the leak there are two distinct conversations which the country should lean into.
The national debate over possible ramifications of such a ruling should foster crucial conversations in society about life, choice, women’s health care, moral relativism, family, social safety nets, adoption and at-risk youth — just to name a few. Unfortunately, the result of the leak has been the fomenting of anger and angst, fear and frustration, false-choices and contempt, political rancor and partisan rhetoric — rather than the fostering of deeper dialogue.
There should also be a conversation relating to the leaked draft opinion and the need for integrity, trust and restraint in institutions and individuals.
Separating the leak itself and the opinion draft content — and possible implications — is important for this conversation.
What the leak has cost the Supreme Court
Trust is the coin of the realm in the Supreme Court. Leaks, controversy and clicks are the currency of far too many politicians, partisans and media organizations. Assessing which coin and currency is of greater value to American society will determine whether or not our future freedom hangs in the balance.
Many have focused on the repercussions of overturning Roe in order to justify the leak. (From early assessment it appears the leak likely came from one of the clerks.) Others have jumped on the bandwagon that the “clerk” was brave to leak the document and Politico was right to publish it.
The Deseret News convened a panel discussion in Washington, D.C., for just such a conversation. Staff writer for The Atlantic, McKay Coppins, emphatically stated, “This is a no-brainer, that you publish that story as a journalist.” His comments drew approving nods from the other two members of the panel, according to a Deseret News article about the event. The panel then continued its conversation on journalism ethics.
Poynter, the journalism think tank, had this to say about Politico: “When confronted with an unprecedented leak like this, news consumers are understandably skeptical in this era of mis- and disinformation. When journalists behind the work don’t signal that they have gone through an ethical process, consumers may conclude that ethics don’t matter to journalists.”
To be clear, writing a first draft opinion is NOT a national security breach or cover-up, nor is it an investigable or impeachable offense. Therefore, there was no legitimate reason to undermine the credibility and moral authority of the High Court by circulating a leaked draft. Writing such drafts, for and against every single ruling, is the job of members of the Supreme Court. The court is the last civil institution which maintains a positive balance of trust from the American people. The price of the trust withdrawals from society’s bank account by the leaker and Politico will prove most costly.
Supreme Court Chief Justice John Roberts called the leak a “singular and egregious” violation of trust. Roberts inferred that it was not an act of bravery, but of betrayal to the branch of government where such trust truly is the coin of the realm.
The value of restraint
There are lessons from Watergate that do apply to this case. Several years ago, I interviewed legendary journalist Bob Woodward a number of times in preparation for an event, sponsored by the Deseret News, I would moderate at the Newseum in Washington, D.C. The event was entitled, “Integrity and Trust”.
Three words Woodward repeated to me countless times during the course of these interviews and from the stage at the Newseum, still echo in my mind as a lesson for today: “Restraint always works.”
Woodward shared how he and his partner regularly wanted to run the Watergate story early in their investigation. Their editor reiterated the need for more work, more investigation, more sources, more dialogue — rather than rushing.
Just because you can do something, doesn’t mean that you should. Restraint always works.
Neither the clerk who leaked the document nor Politico who ran it showed restraint or proper consideration for anything or anyone beyond their own interest.
Politico noted, without truly acknowledging, that this was the first time in our nation’s history that an opinion of the Supreme Court had been leaked and published before a ruling had been rendered. That precedent suggests restraint matters and trust is vital to judicial discussion.
It should be noted that not only has the Supreme Court not rendered a decision in the leaked opinion case, but also that the Supreme Court still has other crucial cases to decide over the next six weeks — including rulings on religious liberty, affirmative action, prayer and the Second Amendment. Absent trust, it will be extremely difficult to have candid conversations and rigorous debate between the nine justices. Justices are likely to be less candid, more guarded, less open-minded and more defensive with the cloud of a comment ending up as a headline the next day in the media.
Sadly, a void in trust actually prohibits persuasion and enlightenment from occurring. Our judicial system demands such trust and such conversations to occur inside the court and between the justices.
It matters where this lack of restraint and undermining of trust leads America. It worries me greatly. We have “stressed-tested” our democracy in civil war, economic collapse, race riots, assassinations, world wars and pandemics — but we have never tested our democracy in the absence of trust. Trust in institutions, trust in leaders and trust in each other are required for a constitutional republic to continue to endure.
With instant access to information and the ever-accelerating race and rush to judgment, we often fail to remember that restraint always works. The national media, political pundits and each of us as individual players on social media could benefit from a little more restraint.
What we learn from those who put the country first
There is another lesson from Watergate that could be rightly applied to both the leaker and Politico. Woodward spent years frustrated with the answers he received from President Gerald Ford about the closing chapters of the Watergate scandal. Woodward was convinced for more than 25 years that the pardon Ford granted Richard Nixon was the final act of corruption and collusion. Surely Ford had made a deal with Nixon — a pardon for the presidency. Yet, Woodward’s reporter instincts caused him to feel that Ford wasn’t telling the whole story. He was right.
After meeting with Ford regularly over a period of months Woodward asked the former president one more time why he had pardoned Nixon. Ford responded, “Why do you keep asking me that?” Woodward replied, “Because I don’t think you have really answered the question.”
The aging Ford then laid out how he had completely rejected any thought of gaining the presidency in exchange for a pardon. He wasn’t about to buy into that historically bad bargain of selling his soul for power. Instead, Ford described his internal thought process of assessing the state of the nation. The country was exhausted and filled with distrust toward the government. Ford recognized that if Nixon were jailed and tried it would lead to several more years of conspiracy theories, angst, anger and frustration. He feared that the important work of the country would remain undone and the distraction of such a trial would further fracture the nation.
Woodward said to me that his view of Ford flipped 180 degrees that day. He saw Ford’s decision to pardon Nixon not as corruption, but as the ultimate act of courage and selflessness.
Ford asked himself the right question. He didn’t ask, “What is best for me?” Instead, he asked, “What is best for the country?” He seemed to recognize in a very real way the need for the nation to move forward. Ford also knew such a decision would be the worst thing for his own political power. He was absolutely correct, it was good for the country and bad for him. Ford’s popularity plummeted from 71% down to 49% almost overnight and he lost the presidential election to Jimmy Carter.
Most historians, regardless of political persuasion, agree that Ford’s ending the long night of darkness for the country was the best thing for the country.
The state of our nation
As a country we continue to be plagued by palace intrigue, scandals, political back-stabbing and partisan power struggles. If only government workers, media companies and elected officials would ask, “What is best for the country?” before launching us headlong into the black hole of distrust.
Absent restraint and a willingness to ask what is best for the country, we will deplete America’s already diminished “coin of the realm” account of trust. Such a bankruptcy of trust will put the nation in real peril.
The bigger crisis for the country is that the distrust perpetuated by institutions of government, large organizations, political leaders, individual actors and the media has begun to fray the fabric of trust in our communities and even in our personal relationships.
Restraint always works. Asking what is best for those you lead or serve or love will make the nation rich in the coin of the relationship realm that matters most — TRUST.