Legal experts weigh in on SCOTUS Roe v. Wade draft leak

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Legal experts weigh in on SCOTUS Roe v. Wade draft leak

If the person who leaked the Supreme Court’s draft opinion striking down Roe v. Wade was seeking to alter any of the justice’s final opinions with public outrage — the move was a mistake, legal experts tell The Post. 

“It strikes me that if this leak was done with the intent of affecting justices’ behavior, it strikes me that whoever made that decision was really mistaken,” said Richard Garnett, a professor of freedom of speech, association and religion and constitutional law at Notre Dame.

“I just can’t imagine that there’s any justice who would change his or her vote or position because of this leak,” added Garnett, who clerked for former clerk for the late Chief Justice William Rehnquist in 1996, emphasizing that the possibility is “unlikely.” 

Sarah Perry, a senior legal fellow with the Institute for Constitutional Government at the Heritage Foundation, echoed that sentiment saying the outcome was anticipated among the conservative community due to the court’s conservative majority makeup. 

Supreme Court
Legal experts tell The Post that Supreme Court justices are unlikely to change their votes based off of the leak.
POOL/AFP via Getty Images

“And based on what we heard in oral arguments — which seemed to indicate that this was an opinion that was based on shaky constitutional footing and it was time for it to go,” Perry said. “So I don’t think it’s going to have an impact on what we are anticipating a final draft will be.” 

Late Monday night, a Politico report released the leaked draft opinion, which many have since desired as an extraordinary breach of the High Court. 

The majority opinion, written by Justice Samuel Alito, calls Roe “egregiously wrong from the start” citing that the Constitution has no mention of abortion.

Abortion protest
Pro-choice activists protested outside the Supreme Court after the draft was leaked.
AP

Almost immediately after the document was leaked, pro-choice activists and supporters protested outside the Supreme Court in Washington, DC as well as online. Dozens of lawmakers have since rebuked the draft opinion and President Biden called it “radical.” 

Despite the growing public pressure, Martha Davis, a constitutional law professor at Northeastern University and author of an amicus brief asking the Supreme Court to strike down Mississippi’s strict abortion law, told The Post that she doesn’t think it will have a large effect. 

“But I also don’t think it’s set in stone,” she said. “I think to the extent that it changes, it won’t be as a result of the protests in front of the young — you know those have been happening for years and years. But it’ll be because Alito. The tone of his draft opinion is extremely vicious. I don’t think that, probably the majority of the justices would want to have an opinion that is so demanding of prior judicial opinions and their former colleagues.”

Constitutional Law Professor Martha Davis says that if the justices do change their minds it won’t be because of the public pressure produced by the leak.
AP

Ernest Young, a former clerk to Justice David Souter in 1995-1996 and current constitutional law professor at Duke University also said the draft could be different from the final opinion, saying that during his time as a clerk some of the first couple of drafts from the majority were “pretty snarky.” 

“It was pretty clear that that was just recreational, none of that was going to stay. I don’t think that’s the nature of this opinion,” he said, adding that often early drafts are really different from the final outcome. 

It is unclear how the leak will change how the Supreme Court does business. 

Garnett told The Post that the Court already has procedures and “very clear rules” in place to prevent such leaks, adding that “it’s not obvious to me, sort of, what else the court can do to prevent somebody who was set on, you know, violating his or her obligations from doing so.” 

abortion protest
Former Supreme Court clerk Ernest Young said that first drafts are often changed by the time they’re final opinions.
REUTERS

However, some believe there still is some action to be taken. 

“I think the court will tighten up,” Young said. “I think that they will be able to retain control. I’m not sure what they’ll do, but I think they will screen for that a lot more carefully.”

The former Souter clerk said the effects of the leak could “actually be salutary,” suggesting the court might be “more reluctant to hire people with, kind of, extreme views.”

abortion protest
A demonstrator holds a sign during a protest outside the Supreme Court after the leak of the draft majority opinion was reported on.
REUTERS

He recalled his own experience, saying “none of our ideological views were as important” as maintaining their relationships with the justices they worked for and the Court itself. 

“I think that they may just — maybe they’ll try to hire more moderate people,” Young said. “That might not be such a bad thing. But, I mean, but it would be unfortunate in that there’s plenty of people who are out there in terms of personal views, but also capable of setting those views aside and doing the job.” 

Perry called the Supreme Court “a self-policing arm,” citing Chief Justice Roberts’ decision to investigate the leak as proof that the court is “committed to finding out exactly where this came from.”

“If anything, we’re going to be seeing its renewed commitment to the fact that this is a non-political branch and the justices themselves are subjected to their own level of integrity and self-policing, as Justice Roberts has made clear,” Perry added. 

“So if anything we will see its intensified self-policing, probably internal modifications of how they manage their confidentiality, how they maintain the strictness of sort of their non-disclosure requirements, but I don’t think it’s going to affect the status or outcome or structure, the federal judiciary going forward.”

abortion protest
Two demonstrators gather during a press conference on the future of women’s reproductive rights at the Massachusetts State House in Boston, Massachusetts on May 3, 2022
AFP via Getty Images

Young also suggested that it is “at least plausible” the leak of the draft opinion was meant to influence elections instead of the justices’ opinion. 

George Washington University legal scholar Jonathan Turley agreed, saying “it is more likely to reinforce the commitment of the majority in the face of public efforts to pressure or influence the court.” 

“The leak immediately triggered calls for the passage of the legislation codifying Roe as well as renewed calls to end the filibuster,” Turley said, calling it a “serious ethical violation.” 

Jeff Hunt, Director of the Centennial Institute, told The Post the aftermath of the leak is “definitely going to energize the pro-choice base, because they’re going to feel like they’ve lost here and that they need to elect officials that are going to stand abortion.” 

abortion protest
After the leak, there were calls to end the filibuster and codify abortion in law.
REUTERS

Despite that, Hunt questioned whether the invigoration will “be enough” to cover other Democratic woes such as inflation. 

Davis also said the leak could be “galvanizing for the majority of the people in the country” who support abortion, adding that it could push a voter turnout in the November midterm elections. 

Meanwhile, Perry indicated Democrats are anticipating severe losses in the midterm elections, suggesting the leak could have been done by someone “invested in making sure that Democrats were maintaining some kind of political capital” headed into the fall. 

Samuel Alito Jr
Davis called the tone of Justice Samuel Alito’s draft “extremely vicious.”
Bloomberg via Getty Images

Still, the overarching impact has yet to be seen, Garnett told The Post. 

“I would think for, as a former clerk, and as a lawyer, I would really regret it if this thing became more common because…this really is an outrageous  betrayal if it came from an employee of the court.”

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