The shocking disclosure of a draft Supreme Court opinion is something that has never happened in the memories of former Supreme Court clerks and SCOTUS watchers. “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff,” SCOTUSblog tweeted minutes after the Roe draft decision by Justice Samuel Alito was posted on Politico. “This leak is the gravest, most unforgivable sin.”
For more than two centuries, the Supreme Court was seen as the indefatigable champion of confidentiality in a city known for leaking information. A Google search of incidents of a premature leak of Supreme Court rulings found the last confirmed episode to have been a SCOTUS clerk from 1919 who alerted Wall Street traders of decisions prior to them becoming public. There has been no such leak like this one in more than one hundred years.
But the Court has been leaking a lot lately, and it’s the conservatives who sit on the bench who are the sources of most of these disclosures. Antonin Scalia broke a lot of norms for the Court: he would openly socialize with Republicans. He would discuss cases in interviews. And he would disclose his judicial rational relating to cases the were expected before the Supreme Court.
Never one to meet the ethical requirements of the Court, Clarence Thomas is well known for not speaking often from the bench, but he’s hard to keep quiet in other situations. Last month, he inserted himself into the Georgia Senate race by allowing a Republican candidate to use a photo of the two of them together. Recent speeches at Notre Dame and at the Federalist Society highlighted his conservative bona fides while simultaneously undermining the Supreme Court legitimacy: he sloppily skated around the edges of his opinions with “a-wink-and-a-nod” alacrity.
Recently, Justices Kavanaugh and Barrett also have had public appearances where they discussed issues that would be in front of the Court. And of course, Samuel Alito famously violated the sanctity of SCOTUS nonpartisanship by mouthing out an obvious dissent to President Barack Obama during the State of the Union after Obama noted, correctly, that a recent SCOTUS decision would allow foreign interests to contribute to US political campaigns through shadow organizations allowed under Citizens United.
The Supreme Court sits at an all-time low as far as public confidence: Earlier this year, Pew Research found that in January, only 54% of Americans have a favorable view of the Court, down 16 percentage point in just 18 months. Gallup put the figure at 40%.
Why? you may ask. Think of this: only one conservative judge on the Supreme Court was named by a president who won the plurality of the vote in their elections. One was named by a president facing impeachment. One seat was hijacked through political immorality. And the qualifications put forth by Republicans for any judge–from the Supreme Court to the lowest federal district judge–seems to be expected life span, damn the law.
Remember: Roe was decided by a 7-2 decision, with five Republican-appointed judges voting in the majority. Now five judges have decided to pull our nation fifty years into the past to placate the minority of citizens in the first time in which a Constitutional right was revoked since Prohibition.