A 'most unforgivable sin' or 'a public service'? Understanding the Supreme Court leak

Questions are swirling about what the ruling would mean for the court's institutional reputation

Samuel Alito.
(Image credit: Illustrated | Getty Images, iStock)

On Monday night, Politico published the initial draft opinion written by Supreme Court Justice Samuel Alito that would overturn Roe v. Wade, the decision that guarantees a federal constitutional right to abortion. Immediately, questions began swirling about the implications of the potential ruling, as well as how the 98-page draft was leaked to Politico and what it means for the institutional reputation of the Supreme Court. Here's everything you need to know:

How did the Supreme Court respond to the leak?

On Tuesday morning, the Supreme Court confirmed that the draft published by Politico was authentic, but stressed it "does not represent a decision by the court or the final position of any member on the issues in the case." In his own statement, Chief Justice John Roberts called the leak a "betrayal of the confidences of the court." The Supreme Court has a workforce that is "intensely loyal to the institution," he added, and the leak was "a singular and egregious breach of that trust" and "an affront to the court and the community of public servants who work here." Roberts also announced that he has directed the marshal of the Supreme Court to launch an investigation into the source of the leak.

Who might have been behind it?

No one has publicly come forward and admitted to being the leaker, and Politico is staying mum, only sharing the draft came from "a person familiar with the court's proceedings" in the Dobbs v. Jackson Women's Health Organization case. The Washington Post says only about 40 people — the nine justices and their clerks — would have had authorized access to the draft, which was written in February, while The Associated Press puts the number closer to 70.

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There are arguments for the leaker being a liberal who wanted to get supporters of reproductive rights outraged over the draft opinion, as well as counterpoints that it could have been a conservative looking to pressure justices into finalizing their votes. Amy Kapczynski, a professor at Yale Law School who served as a law clerk to Justices Sandra Day O'Connor and Stephen Breyer, tweeted on Tuesday that when Politico's report came out, she "assumed a liberal clerk leaked the draft opinion," but now thinks it's "MUCH more likely it was leaked by a conservative" who believes wholeheartedly in Alito's opinion.

Those who work inside the court "know that the most concrete impact of the leak is to lock in this opinion essentially as is," Kapczynski continued. It's possible that since February, more moderate changes have been proposed, and by leaking the initial draft, "it locks in five votes for this opinion, essentially without edits," Kapczynski said. "Who would want that? So: This is about as extreme an opinion as you can have overturning Roe."

How did Politico authenticate the draft?

Politico hasn't revealed how the draft was verified, only saying it received the copy alongside "other details supporting the authenticity of the document." It's a mystery that some people really want to solve; Politico is taking additional security measures at its headquarters, restricting some floors and asking staffers to be aware of their surroundings and if anyone has followed them into the building or on elevators, the Post reports.

Is this the first major leak from the Supreme Court?

While the leak of a Supreme Court draft opinion does appear to be unprecedented, private information has made its way to the public without permission before. "SCOTUS generally has kept its secrets and has kept confidential its internal processes and deliberations," Jonathan Peters, a media law professor at the University of Georgia, tweeted, but one major exception came in 1973. That January, the Roe v. Wade result was leaked by Larry Hammond, a clerk for Justice Lewis Powell.

As Hammond told author James Robenalt, he shared information on the ruling with a Time reporter named David Beckwith, an acquaintance from the University of Texas School of Law. The details he relayed to Beckwith ended up in a cover story for Time; because of a delay at the Supreme Court, the issue was on newsstands hours before the Roe ruling was announced. Hammond told Robenalt that Chief Justice Warren Burger was incensed, and Powell had to talk him down, explaining Hammond had been double-crossed. Burger forgave Hammond, whose story became a cautionary tale for new clerks.

Is leaking Supreme Court information illegal?

The draft opinion is not a classified document, Orin Kerr, a criminal law professor at the University of California, Berkeley, told Reuters. However, an investigation will have to look into whether a crime was committed in order to obtain the draft; for example, if someone hacked into a computer to get it. If the person who leaked the draft opinion is an attorney, an ethics probe would be launched, Kerr said, and because the leaking violates court confidentiality rules, they could be disbarred.

What has been the reaction from the public to the leak? Does this harm the integrity of the court?

Those who watch the Supreme Court closely immediately focused on what this leak means for the institution — as SCOTUSblog tweeted, "It's impossible to overstate the earthquake this will cause inside the court, in terms of the destruction of trust among the justices and staff. This leak is the gravest, most unforgivable sin."

However, most of the responses to this tweet weren't about how the leak affects the Supreme Court, but rather general dissatisfaction. "The court has lost all credibility and stature," The Washington Post's Jennifer Rubin replied. "What a mess they've made of themselves, the law, and democracy." Writer Roxane Gay also shared her opinion in the replies, saying, "Pretty sure that taking away women's bodily autonomy is a far more unforgivable sin. I could care less if the justices who want to legislate my body don't trust each other. No one should trust them."

Writing for New York, David Klion went as far as to defend the leaker for doing "a public service, both by giving Americans who support reproductive rights a head start on mobilizing for a post-Roe legal order and by damaging the Court's mystical aura of legitimacy at precisely the moment when it deserves to be damaged." He added that "if the Court is going to function as a partisan institution, then the public should know at least as much about how it works as we know about any other branch of government."

Indeed, trust in the Supreme Court has been on the downslide — last September, a Gallup poll found approval of the Supreme Court had dropped to 40 percent, a new low since polling began in 2000. In February, Pew Research Center said a national survey showed that 84 percent of U.S. adults say the justices should not bring their own political opinions into the cases they decide.

Justice Clarence Thomas has also been under pressure from Democratic lawmakers to recuse himself from Jan. 6-related cases, as his wife, conservative activist Virginia "Ginni" Thomas, attended a "Stop the Steal" rally and was texting with then-White House Chief of Staff Mark Meadows about overturning the election. With the leak of the draft opinion, "the protocol of our highest court has been seriously ruptured," former New Jersey Supreme Court Justice Peter Verniero told The New York Times, but the act itself "reflects another sad step toward casting the court as a political body, which, whatever your preferred jurisprudence, is most unhealthy for the rule of law."

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