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Explainer: The Leak of Supreme Court's Draft Roe v. Wade Reversal

The U. S. Supreme Court is seen on a sunrise on Capitol Hill, in Washington, Monday, March 21, 2022.
The U. S. Supreme Court is seen on a sunrise on Capitol Hill, in Washington, Monday, March 21, 2022.

Late Monday, the American news website Politico dropped a bombshell: A draft of a Supreme Court majority opinion it had obtained revealed that the court was set to overturn Roe v. Wade, the landmark decision that legalized abortion in the United States in 1973.

The leak of a highly anticipated court opinion, unprecedented in modern history, set off a political firestorm in Washington and protests across the country. Democrats denounced the leaked draft decision as "the greatest restriction of rights in over 50 years" and vowed to pass legislation to protect abortion rights. Republicans cheered the reported opinion written by conservative Justice Samuel Alito while accusing the “radical left” of "bullying” Supreme Court justices.

In a city where the executive and legislative branches of government routinely leak information to the press, the Supreme Court has long enjoyed a reputation as one of a handful of relatively leak-free institutions.

And while some recent internal high court deliberations have been released to the press, never before has a draft opinion been leaked in its entirety prior to its announcement.

Chief Justice John Roberts, who, according to Politico, had yet to endorse the majority opinion by Alito and four other conservative justices, issued a stark condemnation of the leak.

"This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," he said in a statement.

At the heart of the Supreme Court case is a Mississippi law that prohibits performing abortions after 15 weeks of pregnancy. During oral arguments in December, the court's conservative justices appeared willing to uphold the law without signaling they were united in overturning the 1973 decision.

Here are some of the most frequently asked questions about the Supreme Court leak:

How rare are leaks of Supreme Court decisions?’

Extremely rare. The court keeps its internal deliberations and proceedings confidential to shield the justices from public pressure.

However, while court opinions have not been leaked in modern times, unauthorized releases of court decisions and deliberations date back to the mid-19th century, according to University of Georgia media law professor Jonathan Peters.

In 1852, the New-York Tribune reported the outcome of a court decision 10 days before its official announcement, Peters tweeted late Monday.

In 1972, The Washington Post reported details of the court's internal deliberations in the Roe v. Wade case before the justices announced their decision.

And in 2012, CBS News reported how Roberts initially sided with the court's conservative wing before voting to uphold key provisions of the Affordable Care Act.

But those leaks pale in comparison to what was given to Politico, experts say.

"There's been leaks in the past of how a case might turn out for some internal deliberations of the court. But in terms of a fully baked 98-page majority opinion with citations, with all the notations of how a Supreme Court opinion looks and the outcome, this has never happened before," said Gabe Roth, executive director of the nonpartisan Fix the Court.

Who might have leaked the document?

In a statement, Roberts ordered the Marshal of the U.S. Supreme Court — the court's internal police force that protects the justices and the building — to investigate the leak. Colonel Gail A. Curley is the current marshal.

Sarah Parshall Perry, a senior legal fellow at the Heritage Foundation, a conservative think tank, told VOA the Supreme Court's internal police has "all the authority to enforce both federal and District of Columbia laws that may have been broken with this leak of an opinion."

But Roth is skeptical that the culprit could be exposed.

About 50 to 100 people could have had access to the leaked document, including the nine justices, 37 clerks, administrative employees, building staff and security guards, he said.

"I don't know if we'll ever get to the bottom of who might have leaked the copy to Politico," Roth told VOA.

Were any crimes committed?

It's not clear whether the leak involved any criminal violations. If an authorized person accessed and leaked the court document, charges could potentially involve theft of government property, but there are no indications that a person authorized to access the document shared the draft with Politico.

However, Supreme Court opinions, unlike many other government documents, are not classified, but the court's deliberations and draft decisions are understood to be confidential, Perry said.

Moreover, leaking a draft opinion for the purpose of swaying justices could be a "serious offense," said Richard Painter, a former White House ethics czar who is now a law professor at the University of Minnesota.

If a Supreme Court justice was involved in leaking the document, he or she could face impeachment by Congress.

Only one justice — Samuel Chase in the early 19th century — has ever been impeached, but none has been convicted and removed from the bench, according to Roth.

How will the leak impact the court's reputation?

The leak comes at a time when public trust in the Supreme Court and the broader judiciary, long viewed as an impartial branch of government, has fallen to historically low levels. A Gallup poll released last September showed that just 40 percent of Americans approved of the job the Supreme Court was doing, the lowest level since organization started tracking the trend in 2000.

Recent partisan fights over Supreme Court nominations as well as a string of decisions along ideological lines have contributed to the public's low regard for the high court, with many Americans viewing the justices as "politicians in robes," experts say.

In recent months, liberal groups have accused conservative justice Clarence Thomas of ethical violations and called for a Congressional investigation following disclosures that his wife, a Republican activist, had urged the White House to challenge former President Donald Trump's loss in the 2020 election.

"This is not the first problem this court has in the ethics arena," Painter said of the leak.

Still, he said it could further damage the court's reputation.

"I believe it's very, very damaging to the reputation of the Supreme Court that the environment has become so politicized that people somebody is willing to leak a draft of an opinion," Painter said.

Will the public outcry change the final decision?

Highly unlikely. In a statement, Roberts said the leaked document "does not represent a decision by the Court or the final position of any member on the issues in the case."

While justices sometimes change how they vote in a case, some experts say the leak has made it more unlikely that the five conservatives on the court will walk back their apparent support for overturning Roe v. Wade, along with a 1992 case, Planned Parenthood v. Casey.

Supreme Court justices, Painter noted, "never want to be perceived as bowing to public pressure."

In recent months, Roberts was believed to be seeking a middle ground that would endorse the law without overturning Roe v. Wade. But after the leak, he may join the other conservatives on the court in overturning the decision, Perry said.

"He did try to seek a middle ground," she said. "We might, for example, see a 5-3-1. But based on his very strenuous statement that this is not going to have an effect on how they are ruling, I am inclined to believe that we might have actually gained Chief Justice Roberts, when before this leak, we might not have had him.