Structural Leakage at SCOTUS

As the Supreme Court prepares to hand down some major decisions at the end of June on several major issues including the Establishment Clause, the Second Amendment and abortion among others we should consider a very active threat to the institution that is the Supreme Court. Earlier this Spring, there was a leaked draft of a majority opinion that was written by Justice Samuel Alito in February that was released to the media. The draft opinion as written would overturn the landmark abortion cases, Roe v. Wade and Planned Parenthood v. Casey. We have discussed these cases in depth in prior articles, however, it came as a bit of a surprise that more than likely there was a conference vote majority to overturn both these cases, thus leading to an early draft majority opinion indicating same. An early prediction was an incrementalist opinion that upheld the restrictive Mississippi abortion law at issue, but preserved Roe at present while amending the Casey legal analysis.

Supreme Court procedure holds that if the Chief Justice is in the majority, he can assign the majority opinion to himself or to another justice in the majority. If the Chief is in dissent, the senior most justice in the majority, in this case Justice Thomas may assign it to himself or another justice. It is probable that Justice Thomas was in the majority and assigned it to Justice Alito. This draft likely has underwent several changes and is not final as judges can change their vote and join or dissent from specific opinions. The Alito draft could have reflected the legal analysis and sentiment of the majority at that time or could have been an early draft that was bound for revision, but sought to address some of the major issues in this case on the onset as a starting point for negotiations among the justices in the majority.

The nation, however, should express serious concern that this draft was leaked whether or not it will be the majority opinion. The issue of abortion is widely debated in this nation and the source of the leak clearly intended to insert undue and inappropriate pressure on the justices and the legal process. Knowing how controversial this issue is and the sensitivity of the issue, justices’ families were put in the cross-hairs by unruly protests near their residences in violation of federal law once the leak was made public. Additionally, churches were threatened and required extra safety precautions out of concern for the safety of their congregants and worship grounds. Leaking the draft sent the clear message “either vote how we want or suffer the consequences” and threatening to replace Constitutional Law with Mob Law.

No matter the ideological inclinations of jurists, they should be left to do their job peacefully and independently. The judicial branch serves as a check and its primary focus is the defense of the Constitution, not answering to democratic interests like the legislative and executive branch. The irony that exists if Roe and Casey are overturned is that the Supreme Court itself is relinquishing power it should not have assumed with regards to the regulation of abortion and returning it to democratic interests and debate where it belongs.

If those so opposed to the concept of an independent judiciary were to prevail on this issue and substantially alter the direction of the court with external influence, it would have a long-term detrimental impact to the Supreme Court as an institution. Imagine a court where parties believe they will always have a persistent disadvantage because an external society interest could interfere with the fair and thoughtful adjudication of their matter. This type of behavior is a threat to the Supreme Court and the rule of law and should not be tolerated. Structural leakage at this level will in turn lead to the drowning of our society into an ocean of mob rule. The leak needs to be plugged before its too late.