The leaking of a draft opinion in Dobbs v. Jackson Women’s Health Organization has rocked the Court and Washington. The 98-page draft opinion is dated Feb. 10, 2022 and authored by Associate Justice Samuel Alito. I have two columns (in USA Today and The Hill) today on the opinion and the disgraceful leak from within the Court.
The opinion is joined by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. It declares that “Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The opinion can change but the damage done to the Court as an institution will likely be lasting. This shattered a long tradition of the Court of strict secrecy and integrity in the handling of drafts.
The leak is the greatest crisis faced by Chief Justice John Roberts and the greatest security breach in the history of the Court.
While leaks have appeared periodically on internal strife or issues on the Court, I cannot recall anything of this scale. Roe itself was the subject of leaks. The Washington Post did run some leaks the court’s internal deliberations. Then there was a premature disclosure of information hours before the formal release of the opinions. A few hours before the release, word got out on the holding of the Court. However, that all pales in comparison to the release of a draft opinion months in advance of the expected release.
Chief Justice Roberts has confirmed the legitimacy of the draft and the launching of an investigation.
The question is how the Court will proceed in the investigation. Anyone taking this deeply unethical act is likely to have taken steps to hide their tracks. I would be surprised if there were a paper trail or email record. However, anyone who would take such a reckless act may have been equally reckless in the means used to violate the Court’s rules.
If the culprit is a lawyer, disbarment would seem a virtual certainty. This person may be a hero in the eyes of some, but will remain a pariah in the eyes of any ethical lawyer. Yet, disbarment could be the least of the problems. If a suspect lies to the FBI, there could be prosecution under 18 U.S.C. 1001.
Thus, the culprit will have to make a decision today of whether to radically increase the potential costs of this act. There are a relatively small number of individuals with access to these drafts. It is likely that the culprit will be contacted quickly with others by investigators. That will prove a critical moment that could transform an unethical into a criminal act.
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