SCOTUS Experts Shocked at Reported Leak of Abortion Ruling: 'Original Sin for Judicial Ethics'


It didn’t take long after Politico first reported the Supreme Court would strike down Roe v. Wade in its forthcoming decision on a Mississippi abortion law — and published a draft of the court’s opinion in the case, an unprecedented move — that the left began fuming.

Protesters gathered outside the Supreme Court, pushing against the barriers. Democratic leaders went on the offensive, calling the ruling illegitimate, promising action in Congress and using the report to rally the troops for November’s midterms.

And to court-watchers and legal experts, that was exactly the intention of the shocking leak: To throw aspersions on the legitimacy of the court and to rally the Democrats. This take wasn’t limited to conservative sources, either — with one independent Supreme Court-centric publication calling Monday’s leak “the gravest, most unforgivable sin.”

(Here at The Western Journal, we’ve long held Roe v. Wade is a terminally flawed decision that invented a right to abortion out of whole cloth, not any constitutional principle. If Politico’s report is accurate, it’s amazing news — and the reaction is more evidence the Democrats only view the Supreme Court as legitimate when it acts as a legislative body. We’ll keep fighting for the right to life and against judicial activism; you can help us by subscribing.)

Politico’s report about the leak of the purported draft decision in Dobbs v. Jackson Women’s Health Organization, written by Justice Samuel Alito and joined by four others — Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — sent shockwaves through Washington after it was published shortly after 8:30 p.m. EDT Monday.

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In the decision, according to the report, Alito called the logic behind Roe v. Wade “exceptionally weak” and said it “was egregiously wrong from the start.”

“We hold that Roe and Casey must be overruled,” Alito wrote, according to Politico. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

It wasn’t the content of the decision, though, but the fact it was leaked in the first place. The reported vote isn’t final, of course, and could still change — although if it holds, there’s currently a 5-3 majority that would overturn Roe.

Several legal scholars thought the purpose behind the leak wasn’t to change votes on the Supreme Court, however, but to get Congress to act.

Should Roe v. Wade be overturned?

“If this is a true copy of the draft opinion it is hard not to view this as a malicious act. What is the motivation of releasing such a decision? The only intent of such a leak is to trigger a response from outside of the Court,” tweeted constitutional scholar and George Washington University law professor Jonathan Turley, who called the leak “the greatest crisis that Chief Justice John Roberts has faced in his tenure on the Court.”

“This draft is from February and the majority can shift on such opinions. However, the act of leaking such a draft opinion ranks as an original sin for judicial ethics,” he continued. “The most likely motivation is obviously to pressure the Court and push the legislation in Congress on a federal abortion law before the midterm elections. It will also likely renew the call for court packing.”

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Harvard Law constitutional scholar Adrian Vermeule agreed.

“The main play here probably isn’t an attempt to change the result at the Court. It’s an attempt to influence Congress to act before the election, either through legislation or court-packing, or alternatively to affect the election itself,” he tweeted.

He also had the receipts to back his claim up — in the form of tweets from Vermont Sen. Bernie Sanders and Pennsylvania Democratic senatorial candidate John Fetterman, among others, who supported Congress acting on codifying Roe v. Wade into federal law before the next election.

Former federal prosecutor and National Review contributing editor Andrew C. McCarthy said the leak was dire enough that “the Court should issue its opinion right away.”

“If we lose the integrity of the Court’s process, we lose the Court. That should be intolerable to all of us who live the country,” he tweeted.

National Review editor Rich Lowry also weighed in: “The Supreme Court clerk or whoever else did this is the one seeking to break the Court, not the Justices who are trying—finally—to tether the Court’s jurisprudence on this issue to the Constitution,” he wrote in response to former Hillary Clinton campaign spokesman Brian Fallon defending the leaker.

Georgetown Law professor and constitutional scholar Ilya Shapiro, meanwhile, said “[t]he leak is inexcusable and threatens the Court’s functioning.”

“The most plausible explanation is that it’s someone on the left engaged in civil disobedience—so yet again it’s those who bemoan the ‘loss of norms’ who break them. Cf. court-packing, attacking legitimacy, etc.,” he tweeted.

Lest you think this was just conservatives, SCOTUSblog — an independent source of Supreme Court-related news — also decried the leak.

“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,” the publication tweeted. “This leak is the gravest, most unforgivable sin.”

It’s also impossible to overstate the impact on the American public of a draft opinion of what is likely to be the most profound Supreme Court decision of this century being leaked to and published by a left-leaning publication with the net effect being a galvanizing influence on liberals.

In the coming days and weeks, we’re going to hear more talk about breaking norms from the Democrats — efforts to end the filibuster, pack the courts, codify Roe v. Wade and so thoroughly salt the earth politically that undoing the federally conferred right to murder an unborn child becomes nigh impossible.

Whether or not the effort succeeds is another question entirely. The leak itself is the message — and it’s a chilling one for those who believe in the rule of law and the separation of powers.

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C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014.
C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014. Aside from politics, he enjoys spending time with his wife, literature (especially British comic novels and modern Japanese lit), indie rock, coffee, Formula One and football (of both American and world varieties).
Morristown, New Jersey
Catholic University of America
Languages Spoken
English, Spanish
Topics of Expertise
American Politics, World Politics, Culture