On Monday night, the Politico news site released a draft majority ruling that, if passed as it stands, would take the United States back 50 years to when every state was free to prohibit women from terminating their pregnancies.
The document is “authentic” but does not represent the “final” decision of the Court, the institution said on Tuesday. Denouncing “treason” aimed at “undermining” the work of the high court, its leader John Roberts ordered an internal investigation to find the origin of the leak.
Beyond the substantive issues, the scoop stunned Washington, where the Supreme Court is one of the few institutions to keep the media at a safe distance.
“There has never been such a leak” at the High Court, tweeted lawyer Neal Katyal. “It’s the equivalent of the ‘Pentagon Papers’,” he added, referring to the publication by the New York Times in 1971 of top-secret documents relating to American involvement in Vietnam.
“There have been leaks in the Supreme Court before, but never of this magnitude,” nuanced Orin Kerr, professor of law at the University of Berkeley in California.
“Radical Left”
The historic 1973 judgment “Roe v. Wade”, in which the Supreme Court had recognized the right to abortion and which is today in danger, had itself been published upstream by Time magazine. But the article came out just hours before the official announcement, with no bearing on the decision.
This time, the leaker — one of the nine judges? one of their assistants? a court employee? — no doubt intended to mobilize public opinion in the hope of influencing the magistrates before their final decision, expected by June 30.
“This is clearly a calculated and political act carried out by someone who is willing to abandon his professional ethics for a political cause”, wrote on Twitter Jonathan Turley, professor of law at George Washington University.
According to Politico, five conservative justices supported the draft ruling when it was written in February. But negotiations are continuing and all it takes is the defection of one of them for an alternative text to be adopted.
Conservatives have no doubts: the leak therefore comes from “the radical left”, which seeks “to intimidate the judges”, estimated the leader of the Republican minority in the Senate Mitch McConnell, demanding “punishments” for those responsible .
“Innocence perdue”
In a similar vein, Republican Sen. Josh Hawley called on the judges to “not give in” to the spontaneous protests that followed the publication of the Politico article and to release their decision “immediately.”
Judge Brett Kavanaugh, who seems more concerned with preserving the Court’s image than some of his conservative colleagues, could be the subject of this campaign.
But, for some observers, the indiscretion could also come from the conservative camp and reflect the cracks within it.
“Imagine you’re a conservative judge determined to overturn Roe v. Wade. You had five votes to do so (…) but you’re starting to fear losing your majority. What would you do?”, tweeted the professor of right Steve Vladeck.
Whatever the intentions of the prying eyes, “they will not succeed”, assured the magistrate John Roberts: “the work of the Court will not be affected in any way”.
On the other hand, its legitimacy risks coming out weakened. “The Court will never be the same again”, tweeted Jonathan Turley: “we have all lost our innocence and understood that the Court can no longer stay away from politics”.