By Tom Tracy • Catholic News Service • Posted May 9, 2022

The May 2 leaked draft of an opinion in the upcoming Supreme Court’s abortion decision demonstrates the use of normal partisan fighting tactics seen in the other branches of government on a regular basis.

The opinion draft, written by Justice Samuel Alito, shows that the court appears set to overturn its Roe v. Wade decision — which legalized abortion for nearly 50 years — in its Dobbs v. Jackson Women’s Health Organization decision.

The draft document, now considered authentic, was well-written and a good legal argument, but the Supreme Court has suffered in this apparent effort to undermine its legitimacy, said John Yoo, Emanuel S. Heller law professor at the University of California, Berkeley and law clerk to Justice Clarence Thomas in 1994-95.

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“If it shows anything it shows that the critics of Roe who said that Roe has politicized the court and politicized our constitutional law are proven right by this leak itself,” Yoo said in a May 3 online forum sponsored by the Notre Dame Center for Citizenship and Constitutional Government.

He added that openly bare-knuckled partisan tactics have publicly arrived at the court.

“It’s coming home to roost at the Supreme Court because there are people who leaked this opinion who think Roe is more important as a political value than the institutional integrity of one of the three branches of government,” Yoo said in a virtual forum with two academics from Notre Dame.

Richard Garnett, a Notre Dame Law School professor who clerked for the late Chief Justice William Rehnquist in 1996-97, wrote in a May 5 essay for Newsweek Magazine, that it is not yet clear who or what was the source of the leak, what were the leaker’s motives, whether the draft opinion reflects the court’s final decision or what will be the revelation’s electoral or political fallout in a midterm election year.

“In any event, though, for an employee or member of the court to intentionally leak a draft opinion is a gross betrayal of trust, particularly if the leak were an effort to advance partisan aims or to undermine the court’s work and legitimacy,” Garnett wrote.

For the court as a group to engage in reasoned decision making, it needs to maintain candor and confidentiality, he added.

“No court employee can imagine that he or she is somehow heroic for violating these duties. Such arrogant grandstanding is not only a breach of an employment agreement; it is also a betrayal of public trust, and harms all of us,” Garnett emphasized.

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Speaking by phone with Catholic News Service May 5, John Spurlock, professor emeritus of history at Seton Hill University near Pittsburgh, cautioned that while this episode marks an extraordinary breach of Supreme Court practice it remains a matter of speculation about how or why it came about.

“There is speculation on both the right and the left about why it might have been done, but in the absence of evidence it really is talk at this point,” said Spurlock.

“It is always wrong to ask a historian about the future but I certainly think it will be mobilizing for people who see the loss of Roe as a real challenge for them, but how else it might play out it is really hard to say,” he said.

“Abortion has been an extraordinary mobilizing issue on the Republican side since the Reagan era, and, if this decision goes through, how the potential criminalization of abortion plays out in the Republican base is hard to predict, but it is certainly something a lot of people will be looking at.”

“To overturn something like this would be an extraordinary move on the court’s part and hard not to see this as a highly political decision,” he added.

From Europe, Alexander Sarch, professor of legal philosophy at the University of Surrey in England, sent CNS a statement noting that “although the justices have voted for this decision at a judicial conference, it is not impossible for subsequent discussions among the justices to lead to changes to the reasoning and structure of the opinion.”

However, Sarch noted, a leaked decision makes this less likely, as changes would shine a light on discussions internal to the court that normally are shielded from public view to avoid political pressure.

“This is likely to affect the perceived legitimacy of the court far into the future. A leak of this kind also suggests the erosion of norms previously taken for granted within the judiciary, but also signifies the political pressures involved in a decision of this magnitude,” Sarch wrote.

Sherif Girgis, associate professor of Law at Notre Dame Law School and law clerk to Justice Alito in 2018-19, said in Notre Dame’s virtual forum that there are a variety of staff and assistants in the court who would have had potential opportunities to leak the draft opinion.

“It’s very hard for me to reconstruct who would have done this because it doesn’t seem to make sense from anybody’s perspective,” Girgis said, noting that the popular range of possibilities being put forward include that a clerk from a conservative justice leaked the opinion in order secure a desired outcome.

“That doesn’t make sense to me. The personal risk is astronomical for doing something like this,” Girgis said. The prospective gain … is just not worth the risk if things seem to be heading in the right direction.”

“And then on the other side I don’t see that it makes sense from the perspective of somebody to do it who doesn’t like the outcome that the court is headed towards because it seems very unlikely to sway somebody because it would be such a public fact that they had been swayed by public pressure,” Girgis said.