CHAMPAIGN, Ill. (WCIA) – A leaked Supreme Court opinion draft has many Americans wondering how someone managed to breach the Court’s confidentiality. The document, which Chief Justice John Roberts confirmed is authentic, suggests the landmark Roe v. Wade case may be overturned. However, Roberts emphasized the document does not represent a final decision on the issues of the case.
University of Illinois’ College of Law Dean Vikram D. Amar weighed in on the leak’s rare, historic nature, and who could be responsible. First, he doubts it was a justice who intentionally shared the document.
“Even those who may be bitterly disappointed by the direction the court is moving in in this area of law – I can’t imagine them wanting to damage the institution like this,” Amar said.
That leaves two groups of people. He suspects the source may have been a staff member or a law clerk, and perhaps was politically motivated.
“You can imagine a law clerk from a liberal chamber as being very upset about this opinion and wanting the world to see it and react to it. It’s also possible a conservative law clerk might want to put it out there to let the world know what’s going to happen,” he said.
If the source hoped to ultimately alter the court’s decision, though, he said they’ll be disappointed. It’s unlikely that public backlash will lead justices to change their minds down the road. Amar predicts Roberts will try to “run business as usual” in an effort to prevent inspiring future document leaks.
“I think the justices will do their best to prevent that public reaction from affecting any of the tinkering that goes on between now and the end of June, but they don’t want to even have to worry about that. If in every case they had to deal with this kind of public reaction, I think that would make their jobs that much harder,” he said.
Responding to the protests that have popped up across the nation could give the leaker a sense of satisfaction over influencing the Supreme Court’s operations. In general, Amar feels the Court’s ability to deliberate outside the public’s purview is “a good thing.” Doing so facilitates “candid conversations” and allows justices to take provisional positions and tweak them later without the glare of lobbyists.
“It’s probably a sad day for the court to have this happen, but they don’t want to create an incentive for other people to do similar things. They’re probably saying to themselves, ‘I have to do what I was going to do,'” he said.
One thing is certain: if discovered, whoever shared the draft will face consequences, starting with losing their job. A handful of people are involved with printing and delivering opinions to chambers, and Amar said those individuals may worry less about how leaking one may affect their careers. But, as a former clerk, he said law clerks stand much more to lose by breaking a promise they made when assuming their roles at the Court.
“People who clerk at the Supreme Court go on to do things like be a dean at the U of I – like me – so they look forward to significant careers in law. On the one hand, this could really put a damper on that. On the other hand, in today’s climate, maybe it’s a springboard to political stardom,” he said. “This is a sign of the times. I don’t think this would’ve happened 25 years ago. This is just a reflection of the fractiousness that is America today.”
Ultimately, he said it’s hard to predict the implications for the future of the Court’s process. Perhaps it may beget increased vetting of clerk and staff member candidates, as well as new contractual agreements that would outline penalties if found in violation of certain confidentiality norms.
So, why would someone attach their name to a scandal that Roberts referred to as an attempt to “undermine the integrity of our [the Supreme Court’s] operations?”
“Maybe if you want to run for political office from a certain kind of political base in a certain district, this could be a badge of honor that you flout at the convention of the kind of court that would overturn Roe and Casey [Planned Parenthood v. Casey],” Amar said.
He said the Supreme Court has a tough job: leading the country during such a tense time in history. He also believes this could speed up the decision-making process, meaning the public may see official decisions from the Supreme Court before the end of June. In the meantime, the Marshal of the Court has been directed to investigate the source of the leak, according to a statement released by Roberts.