Originally published in the San Francisco Chronicle, May 6, 2022
“An earth-shattering moment for a Supreme Court already on the brink,” read the headline on CNN, whose legal analyst, Jeffrey Toobin, said, “I really don’t know how the institution is going to recover…” “A Supreme Court in disarray,” was a New York Times headline, while Washington Post columnist Ruth Marcus called it “a disaster.” Former Solicitor General Neal Kaytal, meanwhile, told the New Yorker the consequences for the court will be “tragic.”
No, this near-apocalyptic dismay was not about the substance of a draft opinion written by Associate Justice Samuel Alito that would discard nearly a half-century of precedent set by Roe v. Wade, the 1973 ruling that legalized abortion, and would transform what had been for two generations a bedrock freedom into an option for state legislators to decide. Nor was the consternation an expression of outrage that the anti-Roe majority includes justices who had declared during their confirmation hearings, under oath, that they regarded Roe as settled law, deliberately misleading Senators about their intention to overturn it.
Instead, the hand-wringing was triggered by the fact that the opinion became headline news through an unauthorized leak, a frontal assault on the Supreme Court’s curious and long-standing immunity from even elemental accountability.
It’s about time that immunity was defied.
No institution welcomes scrutiny. Maintaining internal cohesion and operational focus demands informational boundaries against the rest of the world. This wish deserves respect, but not automatic submission, especially when matters of vast public consequence are at stake.
That’s why news media take it as a duty to ignore organizational secrecy rules—except when disclosure would cause unwarranted harm—and insist that public awareness must outweigh institutional convenience. A document leaked from most any federal agency that upended longstanding policy would unquestionably be legitimate news, even if it was preliminary, even if exposure would gum up a cozy internal process, even if the leak broke agency rules.
But not when it comes to the Supreme Court.
Of all our governmental institutions, it is unique in the awe and deference with which our news media, for all their endless claims to seek truth aggressively, treat it.
To be sure, secrecy has a place in the judicial system. Grand juries, for example, are prosecutorial contrivances where untested evidence is presented and people suspected of wrongdoing have weak adversarial protections. Damaging the innocent by publicizing unrebutted claims is a strong possibility. Secrecy makes sense.
But the issue here is altogether different. The leak was of a 98-page draft opinion with 118 footnotes, not a filched personal email or the secondhand account of an overheard chat. It was deeply researched and carefully composed and was distributed internally nearly three months ago, and it signals a major change in an explosive area of public policy. Publishing it doesn’t endanger national security and puts no innocent lives at risk.
So should the Supreme Court, virtually alone among core public institutions, be entitled to say, “We’ll show it to you when we’re ready for you to see it?”
At best, that exceptionalist claim rests on a carefully nurtured myth of the court as a scholarly sanctuary in which big questions of public purpose are engaged through reflection, historical inquiry and quiet, reasoned debate, a process of ripening that must take place behind the sealed doors of an intellectual greenhouse.
That fiction lost credibility a long time ago, at least for anybody who was paying attention in 2000 when the court, with the flimsiest of pretexts, awarded the presidency to the candidate with fewer votes but of the same party as its majority.
Indeed, what standards of accountability do govern the court? Its members serve life terms free from disciplinary oversight. To get aboard, nominees routinely lie before Congress—about their personal behavior and their judicial philosophy—rendering the Senate’s authority to approve candidates meaningless. Serving justices are not held to any discernible standard of independence. Their right to rule on matters in which close family have personal stakes, or on which they have clear prior leanings, is completely unregulated.
And then there’s the recent sharp increase in furtive rulings reached off-season without full briefing or oral argument—the so-called shadow docket—which has further narrowed the window of public visibility. Last summer the court issued 11 such rulings, up from three in 2016, in a slapdash and opaque workaround beloved of the conservative majority that produces jurisprudence that “every day becomes more unreasoned, inconsistent, and impossible to defend,” as dissenting liberal Justice Elena Kagan said.
Perhaps the Roe leak will inaugurate a new era for the court. Maybe there will be more impertinent reporting that exposes the reasoning, bargaining, trade-offs and personal dynamics that drive constitutional law-making at the highest levels. Rather than something to be dreaded, such transparency would leave us all better informed and more fully empowered to play the role the system prescribes for us—to shape our collective future.