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Pro-choice and pro-life activists outside of the U.S. Supreme Court on May 2, 2022 in Washington, D.C. (Kevin Dietsch/Getty Images)

The Shocking Supreme Court Leak

And our race to the bottom.

In March, we ran a piece by the reporter Aaron Sibarium called “The Takeover of America’s Legal System.” The story made the case, backed up by exhaustive reporting, that just as education and the press and medicine were being transformed from within, so too, was the law. And those who comforted themselves with the notion that the law would be a bulwark against the new dogma were in for a rude awakening. 

Aaron showed that the young lawyers who were entering the most elite legal institutions in the country—law firms and law schools and courts—didn’t necessarily share the ethos of those institutions. In fact, many of them explicitly seek to revolutionize them. 

My thoughts immediately went to this story when I saw the shocking headline last night by Politico: The Supreme Court plans to overturn Roe. We know that because someone leaked what appears to be an initial draft of the majority opinion of a decision that was expected to land in late June.

You can read the entire thing here.

The opinion, written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, holds that “Roe was egregiously wrong from the start.” It goes on: “We hold that Roe and Casey”—the 1992 decision that upheld Roe, which passed in 1973—“must be overruled.” More: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Less than two hours after Politico dropped the story, CNN reported that Chief Justice John Roberts does not want to overturn Roe, but was willing to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy. Who knows what could leak next.

From what I can see, this is a shattering event on three levels. Substantively, politically, and institutionally. 

Substantively. If indeed this draft opinion becomes the law, what will it mean for American women to live in a country where Roe is overturned and abortion is kicked back to the states? What will it mean practically? What would it mean for women in the 13 states where abortion would become immediately illegal? What would it mean for the doctors who perform those abortions, including in cases of rape and incest? Or in the case of ectopic pregnancies? And other unthinkable questions.

Politically. The most obvious take here is that the Democrats were in for a bruising in the midterms and this was leaked by a liberal to galvanize Democrats. Galvanize how? Perhaps to get voters to turn out as if their lives depended on it. Perhaps to pass a law before the midterms legalizing abortion. (Here’s Bernie Sanders on Twitter last night: “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”) Perhaps to reanimate the case for court-packing.

Institutionally. I know several people who have clerked for the Court. And because I am, like every journalist, utterly and shamelessly nosy, I have pressed all of them to share their personal anecdotes about the mysterious men and women in black robes. Sure, they’d share fun details about pick-up basketball, or the famously warm relationship between Scalia and RBG. Maybe, years after the fact, they’d tell a highly curated, well-rehearsed story. But the idea of breathing a word about the actual workings of the court, about a decision that had not yet been made public—that would have appalled every single one of these people, liberal and conservative alike. 

How did we go from that ethos to a world in which—leaving the possibility of some kind of Russian or Chinese hack, or a more banal security breach, or someone pulling the draft from the garbage—one or more clerks are undermining the institution itself? (That question is the same whether the leaker was a liberal enraged about the decision, or, less obviously, a conservative, perhaps trying to firm up a fifth vote or somehow pressure the chief justice.)

On the question of abortion—its morality and its legality—I do not think there is a better piece that has been written than on the subject than this one by Caitlin Flanagan. It’s called “The Dishonesty of the Abortion Debate” and I urge you to read it. And, if you haven’t yet, please listen to the conversation I had with Caitlin about abortion on Honestly, which captures where I sit on this fraught issue. 

Perhaps you feel torn. Most Americans do: A majority of Americans consistently say they do not want Roe to be overturned . . . and yet a majority of Americans also favor some restrictions on abortion. According to Gallup, less than 30 percent of Americans say that abortion should “generally be legal” in the second trimester. All of which suggests that few people have actually read Roe.

On the question of politics, and the hideous ways this leak and the decision itself will play out, there will surely be much more to say in the coming days. (As I write, the crowd gathered outside the Court is chanting, “Fascist scum have got to go.”) This leak is tremendous news for Democrats, who would spend every moment until the midterms promising to overturn this ruling (and running away from the subject of inflation).

To my mind, though, the question of what this leak means for the institution of the Supreme Court is the most profound one. That is because it captures, in a single act, what I believe is the most important story of our moment: the story of how American institutions became a casualty in the culture war. The story of how no institution is immune. Not our universities, not our medical schools, not legacy media, not technology behemoths, not the federal bureaucracy. Not even the highest court in the land.

The Supreme Court was always the most cloistered governmental institution in America—the one where wisdom and precedent and reverence for our great constitutional tradition outweighed everything else. If there was something sacred that remained, this was it. Yes, there have been leaks from the Court before. But as Politico pointed out, last night’s leak was historic, and not in a good way: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.” 

I called up one of the smartest professors I know at one of the top law schools in the country, and he echoed that: “To my knowledge, it’s never happened before in the modern history of the court. It is the most serious possible breach.”

Serious, severe, shocking, he said. But in the end, not surprising. Why not? Here’s how he put it: “To me, the leak is not surprising because many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing.” 

What did he mean by that? “They think that everything is violence. And so everything is permitted.”

He went on: “I’m sure this person sees themselves as a whistleblower. What they don’t understand is that, by leaking this, they violate the trust that is necessary to maintain the institution.”

Perhaps some of you feel that the institution had already been betrayed. That the Court, long before this leak or this explosive decision, had already been diminished. Maybe the refusal to consider Merrick Garland put you over the edge. Or maybe it was the revelations about Clarence Thomas’s wife and January 6th. Or maybe it was the Kavanaugh hearings. How he was grilled. Or that he was nominated. Or maybe it was earlier: Bush v. Gore or Anita Hill or Robert Bork. 

This feels different than all of that. Why? Because all of those other instances were moments of outrage bookended by long periods of sobriety and seriousness. They were the exceptions that proved the rule. Now, everything seems to have been turned upside down, and the outrage, the uncontrollable or unslakable partisan fury, seems to have overtaken everything. Our sense of history, our respect for the institution, for norms, for even more basic human things: like trust, devotion, privacy, integrity. Jonathan Turley put it this way late last night: “There appears no ethical rule or institutional interest that can withstand this age of rage.”

To the jaded and hardened who have already crossed over into this new age—an age in which power and winning are the only tests of virtue, and the old ideas, like civility and respect, now seem twee—the leak might seem normal or even necessary. But it is nothing more than the most recent salvo in our race to the bottom.

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