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Very little in life leaves me speechless. But when news broke Monday night that someone leaked an entire draft of a majority opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization, I was flabbergasted.
In over two centuries of our nation’s history, this has never happened. This leak is an unprecedented breach of the trust that every clerk, justice, and employee of the Supreme Court owes to the institution. It’s impossible to overstate the gravity of this ethical—and possibly legal—violation. The wound to the independence and integrity of the court may well be one from which the Court never fully recovers.
WASHINGTON, DC – DECEMBER 01: Demonstrators gather in front of the U.S. Supreme Court as the justices hear arguments in Dobbs v. Jackson Women’s Health, a case about a Mississippi law that bans most abortions after 15 weeks, on December 01, 2021 in Washington, DC. With the addition of conservative justices to the court by former President Donald Trump, experts believe this could be the most important abortion case in decades and could undermine or overturn Roe v. Wade. (Photo by Chip Somodevilla/Getty Images) (GETTY)
To drive home how much of a breach this is, let me tell you about my time as a Supreme Court law clerk. In 1996, I had the privilege of clerking for Chief Justice William Rehnquist. The clerks spend almost every waking moment with their justices, helping them read briefs, study case law, prepare for oral arguments, and draft their opinions. For a young lawyer, there is no better opportunity to learn and understand the real inner-workings of the Court. During my clerkship, Chief Justice Rehnquist became a teacher, a mentor, and a close friend. I was immensely fortunate to work for him.
The justices trust each other to negotiate privately and in good faith in order to reach well-reasoned opinions and then explain those decisions to the public in such a way that each member of the Court can agree with—or to give members time to dissent when they disagree. Similarly, the justices rely on their clerks and staff because they trust that his or her inner deliberations are sacrosanct. These procedures are integral to the Supreme Court’s deliberative process.
So the idea of an angry, left-wing law clerk breaching the trust of the Supreme Court—presumably in an attempt to intimidate the justices—is appalling.
Unfortunately, the decision of a lone unethical individual to leak the Court’s confidential working documents is the consequence of a decades-long effort by Democrats to politicize and undermine the Supreme Court.
Democrats have systematically tried to turn the Court into a mini-legislature, where five unelected justices get to decree the rules for the country—regardless of what voters want.
President Barack Obama famously denounced the Supreme Court justices during his 2010 State of Union address for the Court’s decision in the Citizens United case. Democrats employed false character assassination attacks against Justice Thomas for years, and against Justice Kavanaugh during his confirmation hearings. In 2020, Sen. Chuck Schumer even threatened two justices by name for the potential decisions they might make, saying they “released the whirlwind.”
In 2021, left-wing groups announced plans to protest at Justice Kavanaugh’s home in a clear effort to intimidate him and threaten the safety of his family. Groups like Demand Justice also launched shameful ads and a mobile billboard truck to bully Justice Breyer into retiring so he could be replaced with a younger, more activist
Ever since President Trump nominated Justice Gorsuch, Justice Kavanaugh, and Justice Barrett, left-wing groups and progressive lawmakers have demanded with increasing volume to “Pack the Court” by adding four new seats until they hold the majority.
Sen. Sheldon Whitehouse, who sits on the Senate Judiciary Committee and chairs the Subcommittee on Federal Courts, wants to force the names of any individuals who participate in amici briefs to be made public. This would enable liberal activist groups to dox those individuals for engaging in the judicial process.
The Supreme Court shut down those tactics in the 1960s, when Democrats tried to harass members of the NAACP who were fighting for equality before the court. Attacking people for simply availing themselves of our court system was reprehensible then, and is reprehensible now, irrespective of the viewpoints and arguments made in the briefs.
Nevertheless, when news of the leak broke this week, the executive director of Demand Justice, a former adviser to Chuck Schumer, tweeted, “SCOTUS leaks are good. Elite lawyers on both the left and the right treating the Court as precious all these years have just been giving cover to an institution that is wholly unaccountable. Rip the veil off.”
Another left-wing writer at Vox, Ian Millhiser, tweeted his support for the leaker’s proverbial call to “burn this place down.”
The pattern is clear: when Democrats think they control the Supreme Court, they want it to write laws. When they think they don’t, they want to destroy it.
The leak of Justice Alito’s draft opinion in the Dobbs case—while unprecedented—is an unfortunate next step in the left’s campaign to undermine the Court and intimidate justices. I hope they do not get away with it, and that the individual responsible for the leak is fired and disbarred and prosecuted.
At the end of the day, the leaked document is still a draft, and the justices can change their votes up until the moment of the decision. I very much hope the justices will fulfill their constitutional responsibility and not be influenced by political pressure and partisan thuggery.
I remain hopeful the Court overturns Roe v. Wade. Doing so would be the right constitutional outcome and would save the lives of millions of innocent babies.