Breaking News
More () »

What the Roe leak means for the future of the Supreme Court

While leaks do escape the court, the extent of Monday's breach has major consequences for how the court functions both internally and as an institution of society.

WASHINGTON — The Monday night leak of a preliminary draft opinion from the Supreme Court to overturn Roe v. Wade sent shockwaves not just through the country but through the halls of the court -- a traditionally secretive and confidential institution for Washington standards. 

With Chief Justice John Roberts confirming the authenticity of the draft, the head of the Supreme Court also signaled that the leak was a "singular and egregious breach of trust" and ordered the court marshal to launch a formal investigation into the source of the breach. 

The court has cautioned that no final decision on the case has been made.

The dramatic escalation of events has many wondering why exactly the court is reluctant to be more public about their inner workings and what the leak means for the future of the court. 

Why does the Supreme Court value confidentiality?

One of the big reasons for confidentiality is that the court values its "candor of deliberations," according to American University law professor Stephen Wermiel. 

In other words, public awareness and perception of opinions may push justices to not consider all legal arguments fairly. 

"If you are locked into an initial view because it's made public, you won't be willing to consider other arguments or possibly changing your mind," Wermiel said. "I think they consider that quite integral: that it really is necessary to have confidentiality to guarantee forthright consideration of issues." 

In other cases, leaks could give leeway for affected parties to act before a ruling, said Josh Blackman, a prominent court watcher and professor of law at the South Texas College of Law Houston. For example, a draft leak involving a publicly traded company might cause investors to sell stocks preemptively. 

What will happen to the whistleblower?

The probe into the leak signals the Supreme Court is determined to figure out who exactly released the draft. 

People familiar with the internal workings of the court could identify around 70 people who might have access to a draft. First, of course, are the nine justices themselves. Then, there is the small group of staff that work for each justice. Finally, there are the justices’ clerks, young lawyers who work with the justices for a year in a highly-prized position. Each justice has four clerks — and secrecy is part of their job.

Politico said it received the copy “from a person familiar with the court’s proceedings,” leading to speculation that a dissenter among the justices or their staff wanted to make it public. However, it's also possible that someone who liked the draft hoped that releasing the document would harden support for it.

Wermiel said he could see the whistleblower being prosecuted for breaking federal law, if their identify is discovered. 

"I think they will probably follow through on this, whether that be theft of confidential material or dissemination of such material," he said.

But it remains unclear whether such leak is considered a crime. 

In a lengthy Twitter feed, law professor Orin Kerr at the University of California-Berkeley said that there is no law prohibiting the distribution of draft opinions, but suggested prosecutors could charge the whistleblower against a broadly-written statute that prohibits the misuse of government-owned "things of value."

If it were a justice that leaked the draft, the consequences are even less limited, according to Jonathan Peters, professor of media law at the University of Georgia. He said that there are no code that would reign under these circumstances and beyond, although articles of impeachment could be brought forward by Congress. 

What does this mean for the court going forward?

It is unclear what behind-the-scenes changes will occur in the court, but many legal experts believe that this leak will negatively impact the both the public's trust in the Supreme Court and the professionalism among justices and clerks. 

"The collegiality in this -- the friendship of the court, has to be at a low level right now," said Josh Blackman. "I don't know how the justices will rebound from this. It was such a simple decision that was done that will salt wound for decades."

Stephen Wermiel adds that while this is only a draft opinion and there could be changes down the road, the leak negatively impacts the credibility of the court.

"There's been a lot of criticism that the court is becoming more and more political, and I think this does confirm the impression that the court is acting more politically every year." 

Jonathan Peters added that the Supreme Court could and likely will also make internal changes to how justices and staff review and handle cases, but it is unlikely these changes will ever be revealed to the public. 

He also said that while that this leak certainly is equivalent to the "sausage-making" process and the public may be dissuaded by the partisan nature of the court, some may see this is a step in the right direction if they believe transparency is better for government institutions. 

"The answer to public trust is what roles leak play," Peters said. "Do they act as a prophylactic in showing us what institutions are really like -- for people to read more about them and be critical of them -- or do you prefer to operate in a system where less is more, and you don't know us a much but that allows you to have this 'false space' within the institution?" 

The Associated Press contributed to this report.

Before You Leave, Check This Out