Litman: The Supreme Court should try to catch the leaker. But that won’t fix what’s broken

The Supreme Court investigation into the leak of the draft opinion quashing Roe v. Wade is reaching a boiling point, with court clerks reportedly being asked to turn over their cell phone records and sign affidavits – under penalty of perjury – denying any role in the leak.

According to a CNN commentator, the strong-hand tactic is causing the nearly 40 employees to “freak out” and are considering hiring a lawyer. The court’s persistent investigative moves have drawn sharp criticism: Jennifer Rubin in The Washington Post called the actions an “unfair dragnet” and attorney and legal commentator Leah Litman (no relation) called them “insane.”

I am mildly dissenter to outrage at the power of the investigation. The leak was a serious violation, and the seriousness of the reaction should neither surprise nor outrage court insiders.

What the leaker did may not have broken any specific law (a bill has just been introduced in Congress to fix that), but when it comes to court culture, it was the equivalent of a felony.

More importantly, the leaked draft and other bits and pieces that have kept popping up regarding the progress of the Roe decision confirm that the Supreme Court itself is fractured. But here the leak is more of a symptom than a cause.

It’s hard for outsiders to describe how great the sin of the leaked draft is in relation to Supreme Court culture. I was clerk for Justice Anthony M. Kennedy in the late 1980s, during a tenure with a very high-profile abortion case that pointed to Roe’s annulment. It was unthinkable at the time that the draft opinion on this case – or on any case – would be published. The release of Samuel A. Alito Jr.’s full Roe draft in May was as unprecedented as it was shocking.

Chief Justice John G. Robert Jr.’s investigation and his anger – which he called the leak “an affront to the court and the community of public servants who work here” – are entirely understandable.

The Supreme Court is at least conceptually an advisory body, and its drafts are the real means of persuasion and coalition building. They are intended to be written openly and confidentially, and then reviewed, discussed and adjusted based on peer comments. There is no bully pulpit like there is with the President, no heated arguments on Senate floor. The back and forth of the written argument is the decision-making process.

This process was irreversibly damaged by the leak. Any judge writing a draft opinion must now consider that it could end up in the public eye, swamped by political crosscurrents that shouldn’t play a role in the Supreme Court’s deliberations.

Judge Clarence Thomas was mocked for saying with characteristic dyspepsia that the leak “fundamentally transforms the institution… You start looking over your shoulder. It’s like a kind of infidelity that you can explain but can’t undo.” But he’s right about the leak’s implications.

So the court just couldn’t let the leak go through. A concerted effort to find the leaker (or leakers) is necessary, if only for deterrence reasons.

Which brings us back to the investigation itself.

As far as we know, only employees are asked to turn in their phones and sign affidavits as a work requirement. They are the logical focus of Roberts’ investigation. They reflect the passions and positions of the judges they work for; In fact, they have increasingly been singled out because they are soldiers for common political and legal purposes. And the court, as their supreme boss, has considerable leverage to get them to cooperate with the request – if they don’t comply they could be fired, a major blow to their future careers.

Others at the court – clerks, for example – may have had access to the draft opinion, but they are much less privy to the additional tidbits that trickled out – that no other Roe drafts were circulated and no justice changed his or her vote. As for the judges themselves – not only is it unthinkable that they would be the source of the leak, attacking them would be tantamount to dropping a bomb in the middle of the conference room. In any event, the Chief Justice has little power to compel his colleagues – with their lifetime tenure – to cooperate in this investigation.

In the long run, outrage at the investigative targets and their trial obscures what the leak makes clear: the Supreme Court has become a very public trainwreck.

Those who caused the crash are largely political actors outside the court – chief among them Donald Trump and Mitch McConnell. And the crash they caused was the installation of an overwhelming majority of judges bent on sledgehammering many of the fundamentals of American constitutional law.

The Roe leak further undermined what was already crumbling. In many important cases and aspects, the court has ceased to be the trusted advisory body on constitution-making. It is in the iron grip of a five-judiciary bloc that is out of step with the legal community and the American public and has the power to ignore reason and the arguments of the rest of the court.

An ill-gotten majority devalues ​​the Supreme Court and leaves it hopelessly politicized in the country’s broad perception. The leak is important – it counts. But whatever the outcome of the investigation, it cannot fix this larger problem.

@HarryLitman Litman: The Supreme Court should try to catch the leaker. But that won’t fix what’s broken

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