Who leaked the Roe draft opinion, why and what now? — Eight questions and answers

In the more than 60 years that I have been following the Supreme Court — including a year clerking on it — I have never seen a leak such as that which occurred with Justice Samuel Alito’s opinion apparently favoring the overturning of Roe v. Wade.  Numerous questions arise from this breach of court secrecy. Here are eight that come immediately to mind:

Who leaked the opinion? Although I have no evidence, I have a theory of who is the likely leaker. I believe it was probably a law clerk who was strongly opposed to overruling Roe v. Wade, and I strongly doubt that it was a justice. The most likely scenario is that a law clerk, who is friendly with a reporter at Politico, which broke the story, leaked the opinion, confident that the reporter would not disclose the source. 

Why would a law clerk risk his or her career by violating a fundamental rule of secrecy they had pledged to uphold?  The law clerk had to be highly motivated by a belief that overruling Roe would be an unmitigated disaster, and that an act of civil disobedience was warranted. 

What did the leaker hope to accomplish by disclosing the draft opinion? The leaker may well believe that publication of the draft, with several weeks left in the Supreme Court’s current term, might bring about pressure on one or two of the justices to refrain from overruling Roe. Perhaps he or she also thought that Congress might threaten to “pack” the court, or might enact a federal right to abortion under its Commerce Clause power.  The individual may believe that desperate times require desperate measures.

Will the leaker be caught? Chief Justice John Roberts is undoubtedly livid at this breach of the Court’s secrecy. In a public statement issued on his behalf by the court, the chief justice condemned the leak as “a singular and egregious breach” of trust that is “an affront to the court” and its employees. He added: “I have directed the Marshal of the Court to launch an investigation into the source of the leak.” He may go even further, of course, and seek help from the Justice Department or Congress to investigate the leak. A subpoena could be issued to the Politico journalist who broke the story, demanding that the source be disclosed. That journalist is likely to resist, and the issue could then be presented to the courts, probably including the Supreme Court itself.  Judges and justices likely would be unsympathetic to a law clerk who may have engaged in an act of civil disobedience by breaking the obligation of confidentiality. But it is unclear whether a court would compel disclosure of the source, or whether the journalist would go to jail rather than break a promise of confidentiality. 

Is the draft opinion that was published authentic? Based on my experience in reading thousands of Supreme Court opinions, it immediately seemed likely that this was an authentic draft. And, indeed, Chief Justice Roberts confirmed as much when issuing his statement on the incident.

Does the draft mean that Roe will be overruled? Not necessarily. Justices have been known to change their initial conference vote after opinions are circulated.  Even before the leak occurred, Chief Justice Roberts probably was trying to persuade at least one justice — perhaps Justices Brett Kavanaugh or Amy Coney Barrett — to join him in an opinion that would uphold the Mississippi law restricting abortions that was at issue in this case, but not to reach the issue of a blanket-overrule of Roe. It is possible that he will succeed, but that is uncertain.

If Roe is overruled, what will be its political impact? I believe that overruling Roe v. Wade would, ironically, help the Democrats electorally and hurt the Republicans in November’s midterm elections. In poll after poll over the years, solid majorities of Americans generally support a woman’s right to an abortion at some point during the pregnancy, even if they also favor some restrictions as well. So, a majority undoubtedly would oppose any decision sending millions of American girls and women to illegal abortionists, thereby endangering their health and lives. If the right to abortion turns on who is elected to state legislatures, moderate Republicans and independents might well vote for candidates who will preserve their daughters’ right, at least to early-term abortions. Even if it did not have an effect in the fast-approaching November races, it is more likely to have a longer-term impact on voting patterns — and, particularly, the 2024 presidential contest.

What impact would reversing Roe have on the integrity of the Supreme Court? If Roe were to be overruled, it would be only because three new justices were appointed by President Trump.  Nothing else has changed. Overruling a 50-year-old precedent, simply as a result of a change of personnel, would hurt the judicial concept of stare decisis (“let the decision stand”) and would constitute judicial activism by a court that purports to be conservative. It would increase the politicization of the high court and motivate Democrats toward court-packing.  

The Supreme Court as an institution has been weakened by this leak of a draft opinion. In my view, it would be further weakened by an ill-advised decision to overrule a 50-year-old precedent that has helped save the lives of countless pregnant women and girls.

Alan Dershowitz, professor emeritus for Harvard Law School, is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Color-Blind Equality in an Age of Identity Politics.” Follow him on Twitter @AlanDersh.