The Supreme Court’s reputation has been badly bruised after the historic leak of a draft opinion suggesting the majority of justices would overturn abortion rights last week, according to former law clerks from both wings of the bench.
“There were no leaks [in the court before this one], so this is a huge shock,” said Carrie Severino, chief counsel for the Judicial Crisis Network and a former clerk to Justice Clarence Thomas. “The respect for the institution of the court … it’s definitely at a downfall.”
The increasingly polarized politics of American society has found its way into the workings of the Supreme Court, said Carolyn Shapiro, a professor at Chicago-Kent College of Law and a former clerk to Justice Stephen G. Breyer.
“This opinion is full of judgment calls,” Ms. Shapiro said. “Those are not neutral decisions. Those are decisions that require discretion.”
The leak was the first of a full draft opinion in the court’s 233-year history. Though it was one of the most newsworthy events from the Supreme Court in decades, it followed two other leaks — or court intrigue — in recent months.
Media outlets in January reported Justice Breyer’s upcoming retirement before he announced it himself. Later that month, Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor and Neil M. Gorsuch had to issue statements addressing a private kerfuffle over wearing masks on the bench.
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A leaked draft opinion published by Politico last week by Justice Samuel A. Alito Jr. suggested there the majority of justices will overturn 1973’s landmark Roe v. Wade ruling, which gave women the right to terminate a pregnancy until viability.
In the 98-page opinion, Justice Alito said the court in 1973 issued a “weak” justification for affording a right to an abortion, suggesting there was no evidence historically that specific liberty interest — the right to end a pregnancy — was protected by the Constitution.
Pro-choice advocates leaped to the steps of the high court to protest against the possible ruling and even released the addresses of some of the justices amid plans to protest outside their homes.
Chief Justice Roberts released a statement confirming the authenticity of the leaked opinion, which was dated February, but he stressed it is not a final ruling. He also called for an investigation into the leak.
Ms. Severino predicted that the rules for how clerks conduct business will be changed following the unprecedented leak of the draft opinion, adding that it likely caused disruptions in relationships among the justices and their staff.
“They trusted that the clerks were actually going to follow those rules,” she said.
The draft did not identify which justices joined Justice Alito’s reasoning. But Ms. Shapiro said that the court’s three Trump appointees — Justices Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — are most likely among the majority.
She also noted that each of their confirmation hearings drew backlash from Democrats and accused Republicans of rushing to confirm conservative justices.
“The fact that Donald Trump appointed three justices — each under circumstances that were very controversial — certainly doesn’t help the politicization of the court,” Ms. Shapiro said.
Jared Carter, a professor at Vermont Law School, blamed the 24-hour news cycle and social media for leading to a more divisive society.
“All of those things have created a perfect storm by which everything that the Supreme Court does is viewed through that lens,” Mr. Carter said. “When it gets sucked into the political spotlight as a result of that, I think it does cause concern over the court’s credibility and when the court’s credibility is in question, the rule of law is in question.”
Meanwhile, national polling has revealed a decline in the approval of the high court over the past two decades.
Gallup polling released last year showed public approval of the nation’s highest court had dipped to a historic low. In 2001, 62% of respondents had a favorable view of the justices, but last year only 40% approved of the job they were doing.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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