A Review of the SCOTUS Leak
By Everton Prospere
Volume 2 Issue 7
June 13, 2022
Image provided by Insider
On May 2nd, 2022, POLITICO, a political journalism outlet, released a bombshell report that revealed the Supreme Court of the United States (SCOTUS) prematurely voted to overrule the decisions made in the cases Roe vs. Wade (Roe) and Planned Parenthood vs. Casey (Casey). While the repeal of these cases would be a landmark decision by the court, removing over thirty years of privacy rights, the leak also displayed a rupture in the court’s integrity. The leak of this initial draft majority opinion, written by Associate Justice Samuel Alito, is the first of its kind; in response, Chief Justice John Roberts ordered a federal investigation to apprehend the whistleblower. However, what implications could this leak and the early decision have on the United States and its citizens?
To understand this premature decision by the current court, one must dive back to the 1970s, when SCOTUS undertook the case Roe. At the time, the court was led by Chief Justice Warren Burger, who was nominated under President Richard Nixon. Although appointed by a Republican president, the Burger Court established many liberal precedents, the most notable being Roe vs. Wade. According to PBS News Hour, Roe vs. Wade set in place “a constitutional right to an abortion in the United States.” However, most Americans often overlook that Roe vs. Wade was fought under the grounds of privacy rights, meaning the decision protects not only medical confidentiality, but also digital privacy through data collection. The case specifically reviewed the Due Process Clause in the Fourteenth Amendment, which describes that the state governments cannot deprive “life, liberty, or property, without due process of law,” with “due process of law” primarily meaning fair procedures through legislation. Therefore, the repeal of Roe will result in the loss of abortion rights and privacy rights through the internet.
In addition, the case Casey must be reviewed. In 1992, SCOTUS, led at the time by Chief Justice William Rehnquist, upheld the decision made by the Burger Court. According to National Public Radio, while the court continued the precedent established in Roe, the ruling in Casey also permitted states to mandate restrictions to abortions, as long as the laws avoided “undue burdens.” In Roe, the Burger Court created a plan to permit abortions through the first trimester of a pregnancy, with limitations in the second and third trimesters with exceptions to the pregnant person’s health. Casey reformed this plan, allowing states to implement restrictions at any time of the pregnancy; however, significant obstacles, also known as the “undue burdens,” cannot be mandated to prevent abortions. It must be noted that the principle of an “undue burden” leaves a very loose interpretation for states to implement legislation. This demonstrates that while Roe established abortion rights, Casey permits more extensive limitations to abortions.
Although Casey slightly reversed the progress made to create universal abortion rights, the case still upheld the ruling of Roe to permit abortions in the U.S. However, the premature case, formerly known as Dobbs vs. Jackson Women’s Health Organization (Dobbs), forms a greater issue in the fight for abortion rights. A majority of the nine SCOTUS justices apparently ruled in favor of overruling Roe and Casey, meaning privacy rights and, mainly, abortions, will be decided by state legislators. As per the New York Times, thirteen states currently have trigger laws that will take effect immediately if federal abortion protection is revoked. Several of these state laws do not account for rape or incest. The Washington Post reports that an additional thirteen states would also certainly ban abortions or mandate substantial restrictions. Both media outlets outline that 26 states, a majority of the Union, would significantly limit the right to an abortion.
While the decision in Dobbs could potentially lead to detrimental effects for women’s rights and a regression in American society to before the 1970s, one must also take into account the leak itself. POLITICO describes that a breach of this magnitude, through a published full draft, has not occurred in the history of SCOTUS. For example, in 1973, a whistleblower also leaked certain deliberations in Roe, but not the full scale official draft. Due to the leak, a complete rift has taken place inside SCOTUS. As Associate Justice Clarence Thomas explains in regard to the situation, “What happened at the court is tremendously bad…I wonder how long we’re going to have these institutions at the rate we’re undermining them. And then I wonder when they’re gone or destabilized, what we will have as a country? And I don’t think the prospects are good if we continue to lose them.” On May 3rd, Roberts ordered the SCOTUS Marshall, Gail Curley, to investigate and apprehend the leaker, which could be a justice, clerk, or any court employee with access to this confidential draft. At the moment, no gains on the whistleblower’s identity have been made.
As this is a sensitive and relevant topic, students at Valley Stream North High School were asked to respond to two questions regarding the matter. Below are two responses to the questions.
First Interview - Samantha Altieri, junior:
1. What is your opinion on the cases Roe vs. Wade and Planned Parenthood vs. Casey? Do you agree, disagree, or have a neutral stance with the policy established by the Supreme Court of the United States at the time?
“Roe is an established precedent and the law of the land. Regardless of your opinion on abortion, the right for individuals to seek safe and secure healthcare is enshrined in their 14th amendment rights. Messing around with established SCOTUS precedent will create a whole slew of messes that most people aren’t ready to deal with. Roe was a precedent for 50 years. What’s next? Brown? Loving? The constitution was written 200+ years ago. It’s a living, breathing document that should continue to grow and adapt to the ever changing needs of current American citizens. Technology continues to adapt to fit the needs of individuals, and the constitution should be interpreted in a way that does the same.”
2. What is your stance on the actions committed by the whistleblower who leaked the draft opinion established by the current Supreme Court of the United States regarding Roe vs. Wade and Planned Parenthood vs. Casey? Do you think this action was appropriate, inappropriate, or irrelevant?
“I was honestly more angered at what was leaked rather than the leak itself. I do think there are legitimate concerns over who leaked the draft opinion and what this means for the future of the court. Although I’d love to say I have a thoughtful opinion on that, I don’t. Right now I’m primarily concerned with ensuring all individuals have access to lifesaving healthcare. Abolishing Roe and Casey won’t stop abortions, it only stops safe abortions.”
Interview two - Anonymous:
3. What is your opinion on the cases Roe vs. Wade and Planned Parenthood vs. Casey? Do you agree, disagree, or have a neutral stance with the policy established by the Supreme Court of the United States at the time?
“I strongly disagree with the decision proposed by Justice Alito. It is a direct attack on the rights of women.”
4. What is your stance on the actions committed by the whistleblower who leaked the draft opinion established by the current Supreme Court of the United States regarding Roe vs. Wade and Planned Parenthood vs. Casey? Do you think this action was appropriate, inappropriate, or irrelevant?
“While I think leaking it may have not been the right choice, what’s done is done, nothing to do now.”
Evidently, much controversy revolves around this early majority draft. However, while many Americans consider the significance of the leak, most attention is received by the actual decision itself. Dobbs can potentially change the dynamic of women’s rights and prevent more substantial change from occurring at the federal level.