The U.S. Supreme Court has launched an investigation to identify the source of a leaked draft opinion, obtained by Politico Monday. The leak appears to overturn Roe v. Wade, the 1973 landmark case that held pregnant people have a constitutional right to abortion until 24 weeks.
The ruling would not ban abortion nationwide. It would allow individual states to pass restrictions — or outright bans — on abortion.
NPR has independently verified the authenticity of a draft of the opinion. Drafts can and often do change before they are issued.
Chief Justice John Roberts has directed the Marshal of the Court to identify the source of the leak. He said in a statement that the nation’s highest court circulates draft opinions “internally as a routine and essential part of the court’s confidential deliberative work.”
“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said.
WSHU’s Ebong Udoma spoke with Gary Rose, chair of the Department of Government and Politics at Sacred Heart University in Connecticut, about his opinions on how the leak of the draft opinion will shake public confidence in government institutions before federal and statewide elections in November.
WSHU has reached out to U.S. Senate Majority Leader Chuck Schumer's office (D-N.Y.) for comment on the leak.
WSHU: What is the significance of this revelation about the draft Supreme Court decision? And what impact, if any, would it have on Connecticut politics?
GR: OK, well, first of all, it is a serious breach of ethics and a violation of the law to release a draft account of a forthcoming Supreme Court ruling. So that in itself is extremely problematical. And it is incumbent upon the Chief Justice of the Supreme Court to ferret out who did that....
What troubles me is that Democratic lawmakers today are commenting on what appears to be and what it seems like the ruling is going to be while they're expressing a great deal of concern about the ruling, but they're not expressing any concern about the breach of releasing and leaking a draft opinion. That to me, is a very, very important issue. And it's very troubling that individuals on the Democratic side of the House are not discussing that, while they criticize what appears to be a reversal of Roe v. Wade. I think both should be discussed equally.
And you know, a draft opinion is, of course, circulated among the judges, and everyone has an opportunity to read an opinion. And then in this case, it's a majority opinion. And so we don't know for certain if everything that has been circulated is in stone, but I would predict that it probably is.
WSHU: What implications will this have for the forthcoming election?
GR: I think it could have some consequences, I do, and particularly among unaffiliated voters. We have Democrats, obviously are very much pro-choice and are going to, obviously, be very concerned about the ruling. Most Republicans, as polls show, are opposed to Roe v. Wade. So it's not going to move either, you know, Republicans or Democrats, one way or another on this.
But it's the unaffiliated voters in some of the swing districts that are out there, these House districts, and there is a good number of them. And so I do feel that it could have some consequences in some swing districts. Would it be enough to actually alter the outcome of the November elections? I don't think so. Because even though it's going to be a big issue, the Democrats will certainly pump it up to be a major concern about the direction this country's going on matters of privacy and civil rights.
I still contend that inflation and the economy and even issues going on at the border will supersede the abortion issue.
WSHU: Looking at it locally, we have some statewide races of constitutional officers that we have open seats for. We have a challenge to the incumbent Democratic U.S. Senator Richard Blumenthal. Do you think it will play any role in those races?
GR: Sure. And, I think that we do have some Senate races that are taking place out there where the Senate hangs in the balance. And, it's possible that this could tip the scales. Yeah, it's a good observation. But you know, I also think a number of voters. And I've already said, you know, independents, I think, you know, are going to be … It could be to the advantage of the Democrats.
But I still contend there's going to be a considerable swath of voters who look at this leak as problematic in terms of how our institutions function. And even though they may not agree with a reversal, they might think that what happened here is even more egregious. And there could be a backlash against the Democrats if they keep applauding this in a big way.
WSHU: And would it affect the ultimate Supreme Court decision?
GR: I don't think so. It's hard for me to imagine the justices who were siding with Justice Samuel Alito — all of whom are on the conservative side of the spectrum — to all of a sudden suggest, “Wow, look at the outrage and look at the people outside the courthouse protesting. We have to change our mind.” I give the judges more credit than that. I don't think they're easily swayed by, you know, mob behavior outside the court courthouse. If that was the case, I think we would have seen that in other cases before. And so my read on that is that most likely, it's not going to change. This draft opinion is probably what we're going to learn is the law of the land.
WSHU: And how can we remedy that distrust?
GR: You know something, this is an extremely serious breach of ethics. But you know, there was a very serious breach of ethics many, many, many years ago before that. When the Supreme Court was ruling on Dred Scott v. Sandford [in 1857], before the ruling was officially announced, President James Buchanan was tipped off on what the ruling was, and was tipped off for the purpose of actually making a statement in his inaugural address that the country has to respect whatever the court says about the slavery issue. And there was a justice on the Supreme Court who actually made sure that Buchanan knew the ruling was coming and that he would essentially support what the court was ruling on. So this is not the first time that there's been a leak that did not play into the political system.
WSHU: Wow. Yeah. That's fascinating. The last time a Supreme Court decision leaked was the original 1973 Roe v. Wade decision. But look at the time in between the two revelations. But also we have some very serious structural issues that are being contested right now.
GR: This really is going to affect the court. It really is. The way that our institutions are under attack today, and there's such little trust in our institutions of government that this does. The Supreme Court stood apart, at least from Congress and the presidency. It was perceived as the least political, which it's supposed to be, you know, and the least dangerous branch.
But now, you know, it just draws the court into politics, into, essentially, what is the polarization that's going on in this country. It’s not going to be a good thing for the image of the court. … I would hope that the President of the United States would condemn what happened, as opposed to focusing more on what's going to be reversed. And I wish [U.S. Senate Majority Leader] Chuck Schumer would also make a statement that this is wrong, irrespective of the ruling itself, but they're not doing that.
And that could at least, I think, restore some, some integrity here in the process. The political leaders should really, really publicly condemn what happened, and the Democratic side, specifically.
Sacred Heart University is the licensee of WSHU Public Radio.
