Abortion in America: How the Supreme Court draft opinion was leaked

The publication of the document that could soon overturn ‘Roe v. Wade’ is unprecedented and has triggered an investigation in the US’s top tribunal

Abortion USA
Activists for and against abortion demonstrate in front of the United States Supreme Court in Washington.Anna Moneymaker (AFP)
Iker Seisdedos

Washington is a city of journalists. The capital of investigations such as Watergate and the Pentagon Papers. The home of Deep Throat and the boulevard of broken dreams for young reporters who come from all over the country to work day and night while dreaming of landing that exclusive. It’s also that place where a leak can still become a phenomenal news story on its own. It happened on Monday night, when the website Politico, founded in 2007 to report on the intricacies of US power, published the initial draft majority opinion against abortion of five of the nine Supreme Court justices. If confirmed, it would repeal an earlier court ruling, Roe v. Wade, which has guaranteed constitutional protection of abortion rights in the United States since 1973, and return that legislative power to the 50 states.

Despite such fierce competition for scoops, this is the first time in the modern history of the institution in which a leak of this magnitude takes place, and it is threatening to change the rules of the game forever. For now, it has triggered an investigation, launched by Chief Justice John Roberts, to locate the exact source of the disclosure. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” he said in a statement issued on Tuesday.

That secrecy with which the nine justices (and their teams of advisers and assistants) had operated until now was taken for granted in Washington as a guarantee of the integrity of an institution that, in a certain way, was above the rest. There are leaks (almost always deliberate) from the White House, the Pentagon and the legislative chambers (the congressional committee investigating the January 2021 assault on Capitol Hill, for instance, is a constant source of fresh news).

But the Supreme Court has never been a part of this, and court reporting is based above all on the interpretation of its decisions and on what goes on at hearings. On one occasion, Time magazine advanced a sentence by two hours, but nobody can recollect the full publication of a draft opinion. Written in February by conservative Justice Samuel Alito, it is still subject to review and may even have changed since it was originally drafted.

For reporter Joshua Prager, whose book The Family Roe: An American Story, released in September 2021, revealed the identity of the girl at the heart of the Roe v. Wade case, what happened this week is the definitive demonstration that the Supreme Court has become a “political body.” “I am a journalist, I believe in exclusives, but I am also an American who loves his country. For this to work you have to let those justices work. From now on they will be paranoid, and that is not good.”

In an opinion article published this Wednesday in The New York Times, Adam Liptak, the newspaper’s Supreme Court reporter, pointed out that this only confirms what much of the nation already believed: that the Supreme Court “is little different from the political branches of the government. The internal disarray the leak suggests, wholly at odds with the decorum prized by Chief Justice John G. Roberts Jr., was a blow to the legitimacy of the court,” he wrote in an article that begins with a Latin phrase “as old as the Roman Empire: Cui bono? Who benefits?”

Answering that question correctly would tighten the net around the source of the leak. But it is not so easy, because, like almost all the questions that arise every day on the political scene of a country that is increasingly split in half, it has two answers.

It could serve the interests of the Democrats, who are in need of stimuli to mobilize their undecided voters ahead of the November midterm elections, where they are trailing behind. Just hearing that a repeal of Roe v. Wade could be just around the corner has sent thousands of Democratic supporters onto the streets of cities across the country. It is also possible that whoever leaked the draft wanted to show a still photo of the judges’ positions in February to ensure that they do not change their minds in June (or early July), when the final opinion is expected.

The Josh Gerstein exclusive

The individual who got his hands on the draft is a Politico court reporter named Josh Gerstein (who co-signed the piece with Alexander Ward from the national desk). Obviously, they have not revealed their sources, but the scandal has put those sources in the spotlight, so much so that, according to some, the FBI could become involved in the investigation. Have they then committed a crime? Experts on the First Amendment, which regulates free speech, basically agree that they haven’t. Orin Kerr, a law professor at UC Berkeley, is among them: “Criminal laws persecute the dissemination of classified information, of course. But such a document is not classified.”

All the mainstream media rushed to publish the exclusive, replicated by reporters who admitted that, exceptionally, they had not been able to double-check it due to the proverbial impenetrability of the Supreme Court. The Washington Post justified itself by saying that they had no reason to believe that the document was fake.

Almost immediately after hitting the publish button, Gerstein granted an interview to Rachel Maddow, MSNBC’s star host, which made her opponent, Laura Ingraham of Fox News, suspect on air that the political left was up to something (she defined the leak twice as “an insurrection against the Supreme Court”). Gerstein was confident about the authenticity of the draft (“we have information that supports that assessment,” he said, looking slightly alarmed). It is not hard to imagine that when Chief Justice Roberts admitted that the draft was “authentic but not final” the next day, the Politico reporter must have breathed a sigh of relief.

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