Before we divulge into the commentary this week, we would be remiss to not wish all the mothers who read this a Happy Mother’s Day.
Abraham Lincoln famously said that “All that I am, or hope to be, I owe to my angel mother.” Though she died when he was only nine, he remembered her fondly and his quote speaks to the profound impact his mother had on his life. Such is true for today’s mothers who play such an important role in shaping the future of the world through the raising of their children. The appreciation we have for our own mothers echoes Lincoln’s sentiment.
On the topic of mothers and children, a leaked draft opinion from Justice Alito was published by Politico on Monday night. The draft indicates that the Court has voted to overturn Roe v. Wade and Casey v. Planned Parenthood and therefore return the abortion question back to the states where it belongs.
While we welcome the indication that the awful legal precedent Roe v. Wade set may soon fall, our immediate concern is with the leak itself and the damage it will do and has already done, to the Supreme Court as an institution.
This leak undermines the institutional integrity of the Court. The individual, whoever he or she is, responsible likely intended to alert the public of the Justices’ deliberations in an effort to mount political pressure against the Court. The leak undermines the Court’s deliberative secrecy which is meant to limit the ability of public pressure to influence decisions. He or she who is responsible ought to be fired immediately. We hope they are caught.
In a statement Tuesday morning, Chief Justice Roberts condemned the “egregious leak” and said that “this betrayal of the confidences of the Court was intended to undermine the integrity of our operations.”
While there have been a handful of instances in which partial leaks have occurred, the leaking of a fully drafted Supreme Court majority opinion is unprecedented in our country’s history according to Georgia Law Professor Jonathan Peters. Such leaks are anathema to the Court’s role and are taken so seriously that the Berger Court instituted a “20-second rule” under which any clerk caught talking to a reporter would be fired in under twenty seconds.
Abandoning the standard of secrecy that the Court has long upheld invites political pressure to be mounted against the Court. Justices should be given the opportunity to rule without fear of the rippling effects of that ruling. They are not supposed to consider public opinion when it comes to their rulings. Decisions should only consult the facts of the case and the demands of the law, nothing more.
The issue of abortion is one of the most contentious issues of our lifetime, it may be difficult for those on either side of this issue to view the leak in an objective manner, much less as a legal matter rather than a moral matter. Nevertheless, it is in the interest of all Americans whether for abortion or against, that this egregious breach in the procedures of the Court is condemned and that no such breach ever happen again.
In our system of government, it is very often so that preserving the means is of far greater interest than procuring any given end. As Justice Scalia observed in discussing the Constitution, it is those means–the structure and procedures of our government and its various branches–that defend our liberties from tyrannical infringements. This leak is an assault on the means in the name of securing the end of abortion and the preservation of Roe and Casey.
It is predicated upon the notion of justice by mob rule; that the Court must submit to the will of the majority. Those who believe the preservation of current abortion jurisprudence is an endeavor supported by a majority of Americans may welcome this leak and intimidation ploy in an act of shortsightedness. But if the so-called right to abortion may be upheld by mob rule as the right to life is deprived by mob rule, then all our other liberties are also subject to the lusts of the mob. Justice by mob rule is nothing more than democratic injustice, and all Americans should oppose any actions that would subject our liberties to it, especially this leak in the highest court in the land.
The leak presents a significant threat to the legitimacy of the judiciary. If leaks of draft opinions become a mainstay at the Court, justices interpreting the text of the Constitution will be subject to pressure campaigns from the political activists on the left and right. Members of the Court would be treated like senators on the fence about a piece of controversial legislation. They would be bombarded by activists in public, and some are already facing protests at their homes.
Justice Thomas, in all his fearlessness, indicated this weekend that the Court will not succumb to public pressure and the demands of the mob. “We can’t be an institution that can be bullied into giving you just the outcomes you want,” he said.
May it always be so.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.
