On May 2, Politico published from an unnamed source a draft copy of a decision for the majority of the court authored by Justice Samuel Alito. On May 3, Chief Justice John Roberts issued a statement confirming the authenticity of the draft. The draft suggests that a majority is predisposed to overturn Roe v. Wade in favor of state resolution of abortion questions, based on the absence of any provision in the Constitution addressing, let alone legalizing, abortion. While on the merits I agree with the reasoning in the draft, we must understand that it is not final and should not be deemed the definitive position of the Court, which must await an ultimate iteration and formal release. Moreover, the decision lacks concurrences and dissents, so even were it a true copy of the majority opinion, it lacks full context.
The leak of the draft ought to be our focus. The leak is a crime, an obstruction of justice. That crime is in need of investigation. The person or persons responsible must be prosecuted and subjected to an appropriate punishment. The leak is a breach of a solemn and legally binding trust and a betrayal that threatens judicial review and independence.
While an investigation is underway, and no one should be presumed guilty of the offense, it is nevertheless likely that the person or persons who leaked the draft did so to ignite popular and political passion against the Court, hoping thereby to cause one or more justices to resign from the majority. Therein lies the criminal intent necessary to prove obstruction of justice.
The integrity of judicial process vitally depends on keeping deliberations by justices of the Supreme Court and judges in the lower federal courts (along with interactions by them with their legal and administrative staff) strictly confidential. Internal debate, sometimes evolving late into the drafting process, can affect the outcomes of cases. Interactions among justices and judges, clerks, and staff are essential to adducing the law and to guarding against a mistake of justice. If political pressure is brought to bear on the very language undergoing debate, it distorts deliberation and denies independent judicial review. Without sure knowledge that drafts will be kept confidential, judges lack that independence they must have to determine free of external influence which facts are material and what the law means when applied to those facts. In short, the leaking of a draft is a direct assault on the judiciary.
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It will be particularly egregious if a Justice (however unlikely), a clerk, or legal staff divulged the draft to the media. If a Justice, impeachment and removal from office would be appropriate. If a clerk or legal staff member, in addition to termination if still employed, that individual should be prosecuted for, among other potential offenses, obstruction of justice under 18 U.S.C. Section 1503. In addition, upon conviction, if the individual is now practicing or plans to practice law, that individual should be permanently barred from legal practice and from employment in any state or federal government. The laws of legal ethics in every jurisdiction forbid the breach of trust that has taken place.
The tragic reality is that the heretofore normal working relations at the Supreme Court and in the lower federal courts have by this act been changed forever. The courts must now adopt more restrictive security measures to lessen the risk of the same or comparable offenses, making it more difficult and less efficient for justices, judges, clerks and staff to interact with one another and perform their essential functions. That is not only an inconvenience but an incumbrance to the prompt and due administration of justice to the detriment of the courts, the advocates, and the parties. The unprecedented dereliction of duty, revealing a fundamental disrespect for judicial process and a contempt for the rule of law, demands a swift investigation, charges, and punishment to create a meaningful deterrent.
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