Opinion: Sen. Mike Lee on the Roe v. Wade leak and what it’s like inside the Supreme Court
Utah Sen. Mike Lee was a clerk for Justice Samuel Alito and got a close-up look at how the court keeps its work private.
After reading the Supreme Court’s leaked draft opinion in Dobbs v. Jackson Women’s Health, I must say that I have never been prouder to have clerked for Justice Samuel Alito. Entering the Supreme Court building as a clerk is an experience I will never forget. After a tour of the auspicious building and Justice Alito’s chambers, I was shown the desk where I would work. It was unlike any desk I had seen before. There were two computer monitors, two keyboards, but only one chair.
One computer was connected to a network to be used exclusively for legal research. The other computer, completely disconnected from all outside networks, was for taking notes and drafting opinions and nothing else. Once a draft opinion had been printed, I was to keep track of where each copy went. When we were done with any copy, it would be placed in a striped paper bag called a burn bag before going through a complicated process of shredding, incineration and liquification so that our words could not be reconstructed by those outside the building.
Every day was filled with a sense of seriousness and duty. Real people’s lives, billions of dollars, the balance of power and the Constitution itself were at stake in many of the court’s decisions. Everyone felt that seriousness even, and especially, when there was disagreement.
The Supreme Court has exerted incredible effort throughout its existence to avoid politicization and maintain collegiality. When Chief Justice John Marshall led the court, the justices lived together in a Washington boarding house during the court’s term. Traditionally, justices would refer to each other as “my brother” or “my sister.”
While these traditions have not continued, the friendliness of the place has. There is something about knowing that you are going to be working with the same people for possibly the rest of your life and the seclusion of the court that brings justices together.
Justice Antonin Scalia and Justice Ruth Bader Ginsburg were dear friends who would often attend dinner and the opera together with their spouses. Justice Elena Kagan and Justice Scalia would go on hunting trips together. When the court sits for oral arguments or conference, all the justices eat lunch together and the one topic they do not discuss is the docket of cases before them. They know and care for each other.
This term has seen a number of attacks on the court, the largest of which is an unprecedented leak of an entire draft opinion.
A leak of this nature has never happened before. It is a threat to the free flow of information and ideas within the Supreme Court. It is also a threat to the trust that justices share with their colleagues and the clerks who allow the court’s oppressive workload to churn forward.
It also subjects the court to public and partisan pressures in an already charged environment. Elected officials are threatening court packing and much else while shamelessly accusing justices with whom they disagree of lying, selling out and worse.
In 2020 Sen. Chuck Schumer hurled threats at specific justices while speaking to an angry crowd outside the building. This leak and those who attempt to pressure the court are placing the court, the justices and our very legal system at risk.
The leaked opinion is a masterwork. Whatever your views on abortion, the Constitution simply does not say a thing on the matter. That means that it is an issue not for the courts but for the people to decide through their elected representatives. Justice Alito’s draft clearly explains that Roe and Casey violated the text of the Constitution all along. He is right. I hope a version of the draft we have seen reflects a majority of the court and becomes the law of the land soon.
If this opinion takes effect, states will be able defend life and protect millions of mothers and their preborn babies. This includes states like Utah that already have laws protecting life at conception set to take effect as soon as the court overturns Roe and Casey.
I pray that Americans will unite behind protecting the most vulnerable among us. I pray for the justices’ safety and for the collegiality of the highest court in the land. I hope the justices will be able to restore the decorum and collegiality the court requires. Heaven knows our republic needs it.
Mike Lee is the senior United States senator from Utah. He is currently running for reelection to the Senate.