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Editorial Advisory Board: Our wounded Supreme Court

The unprecedented leak of a draft opinion authored by Supreme Court Justice Samuel Alito overruling the 1973 case of  Roe v. Wade and thus permitting state legislatures to decide the legality of abortion sent a shock wave through the national legal establishment like few other incidents involving the court. Lawyers of all stripes, journalists who report regularly on the work of the federal courts, as well as others who pay attention to developments in the national legal system, were at once dismayed and, at the same time, unsurprised by the disclosure of the draft opinion.

They, and we, were dismayed by the magnitude of the breach of confidentiality and security surrounding the court’s deliberative functions, which form much of the core of our shared belief in the institutional integrity of the Supreme Court’s historic role in our constitutional representative democracy.

And yet, it seems unsurprising that, in a time of “alternative facts,” the decline of truth-telling as a public good, and in the face of a wholesale repudiation by political actors of any semblance of adherence to longstanding conventions and norms, that the court itself, or persons cloaked with the responsibility of preserving the public’s regard for the court, would surely succumb to the despairing momentum that has taken hold of public discourse, where seemingly “nothing matters anymore” and “anything goes.”

Make no mistake about what has happened here. If it is a law clerk to one of the justices, and should that person be outed as the source of the leak, he or she will almost surely never practice law in this country. That is a measure of how huge and consequential this breach of norms truly is. If it was a nonlawyer, then the consequences for that person will be concomitantly harsh.

The need for a strong deterrent for such actions is apparent. Imagine a case with huge economic effects, a mega merger of financial institutions or a securities matter for example, a “bet-the-company” litigation whose premature disclosure could ruin, indeed, potentially cost, many lives. Such an occurrence actually sullied the court a hundred years ago in the case of a law clerk named Ashton Embry.

In promptly ordering an investigation, the chief justice (as some in Congress have demanded) will be quick to fashion new punitive measures seeking to deter any similar future deviation from long-settled norms protecting the confidentiality of the court’s work. That confidentiality is crucial to the ever eroding trust that “we the people” must have to make the rule of law a reality in the country.

Dismaying narrative

All that said, there are those who view the leak as simply a subversive but wholly legitimate attestation that the court has simply devolved into a third political branch of the federal government. The mythology of the court as a nonpartisan fount of impartial and objective “umpires” merely calling “balls and strikes” (in the words of Chief Justice John Roberts)  has been on the wane for years.

The leak is of a piece with other questionable developments in the narrative of the once-respected federal courts, e.g., (1) the drumbeat of opposition to Harriett Miers that quickly forced President George W. Bush to withdraw her nomination and to nominate now-Justice Alito in her stead; (2) reports that Justice Anthony Kennedy was lured into retirement by a promise that his former law clerk, now-Justice Brett Kavanaugh, would be appointed as his successor if he did so; (3) the extraordinary refusal of then Majority Leader Mitch McConnell to permit the Senate Judiciary Committee to hold a hearing on the Merrick Garland nomination; and, more recently  (4) reports that some federal appellate judges have explicitly conditioned their retirement from the bench on the appointment of a person of their own choosing.

These and other devaluations in our perceptions of the independence of the federal courts clearly support the view of the Supreme Court as just another political branch.

Most knowledgeable observers knew full well that in the Supreme Court of 2022,  Roe v. Wade’s days were numbered. In that sense, the disclosure of the draft opinion told us nothing we did not already know. The suggestion that the leak springs from some intention to “intimidate” the justices is ill-informed, at best. Supreme Court justices, enjoying lifetime tenure, are no more moved in their views by attempts at “intimidation” than they are to changes in the moon’s phases.

Nor will the leak change any votes. If the draft opinion is ever issued in substantially the form it now takes, as before the decision in Roe v. Wade, abortions will take place all over this country, but some of them will be illegal.

The leak has added a stain to an already damaged federal court system; it has thereby damaged the country. We should all grieve for the loss of one more stabilizing pillar of our fragile democracy.

Editorial Advisory Board member Arthur F. Fergenson did not participate in this opinion.


James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.