We don’t know who leaked the early draft of the decision overturning Roe v. Wade, but it’s possible to deduce their motive for handing it to Politico.
Someone wanted to pressure the justices to alter their votes in order to keep Roe the law of the land. Another possibility is that someone leaked in order to harden conservative opinions so they wouldn’t be changed, as sometimes happens with controversial cases.
It’s far more likely that the leak came from the side with the most to lose and the side that anticipated defeat. They chose to drop a bomb on the court in a last-ditch effort to carry the argument — by any means necessary.
No matter the reason, this was an effort to use the unheard-of practice of leaking a draft decision to intimidate Supreme Court justices. In our republic, this quite simply can’t be allowed to happen.
This is how hardball politics works in Congress or in the executive branch, where strategic leaks are the norm and very often no one trusts anybody. It’s completely inimical to the spirit of the Supreme Court, which is supposed to decide its cases as a strict matter of law free of political influence.
Tellingly, almost no one on the left criticized the leak — instead, many praised it as an act of brave defiance that reflects the gravity of the moment.
This is yet another sign of the hypocrisy of all the Trump-era lectures from progressives about the importance of norms and neutrally applied rules. As soon as a Supreme Court decision might go against them, they abandon all pretense of believing any of that and attempt to bludgeon the Court into submission.
The worry is that the leak will shatter the precedent of confidentiality, making any politically controversial decision on the culture — gay and transgender rights, for example — a political football where leaks are used to sway and intimidate the court and its members.
When you conduct yourself in an utterly lawless way, attacking the institutions of this country, attacking the founding documents of this country, attacking the history of this country, this is what you get: lawlessness. It’s just a matter of time. All these institutions are going to collapse. This is a grave assault on the Supreme Court. When I was in law school, I was actually an intern to Chief Justice Warren Burger. I saw how it operated, and I can tell you this institution takes its confidentiality seriously. Why? That’s the coin of the realm. They’ve got to be able to talk about ideas freely. They’ve got to be able to discuss this without political pressure. Why do people think these are lifetime appointments? Of course, the Democrat Party is destroying this country.
It brings to mind Robert Bolt’s views on laws and their importance in guaranteeing the integrity of institutions. In A Man for All Seasons, Sir Thomas More tells the suitor of his daughter why he’s such a dangerous man.
William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I’d cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
Democrats and the left would cut down every law in the United States just to make sure their point of view prevails. The law is an inconvenience to their personal ease and comfort, and any attempt to alter the status quo that advances their agenda must be resisted.
But for our own safety, raising up laws to protect the helpless is the absolute minimum we can do to maintain the integrity of our institutions.
Perhaps the turning point will be here. Perhaps this decision will embolden the right to assert its primacy in the culture wars, and common sense and sanity will prevail.
It’s a long fight ahead, no matter how you look at it.
