As It Happens·Q&A

U.S. Supreme Court leak — and its 'radical' contents — are bad for democracy: law prof

Both the leak of a draft U.S. Supreme Court ruling on abortion rights, and the "radical" contents of the ruling itself, serve to "erode the rule of law" and "hurt America's constitutional democracy," says a law professor and former top court clerk.

Paul Schiff Berman says the leak, and what it says about abortion, 'erode the rule of law'

Demonstrators protest outside of the U.S. Supreme Court on Wednesday. One holds a sign that says: 'My body, my choice.' Another sign reads: 'OMG GOP.' (Alex Brandon/The Associated Press)

Story Transcript

The unprecedented leak of a draft U.S. Supreme Court ruling — and what the ruling says about abortion — are both bad news for American justice and democracy, says a law professor and former top court clerk.

Politico published a leaked draft ruling on Monday, revealing that the majority of U.S. Supreme Court justices have voted to overturn Roe v. Wade. 

If the 1973 ruling is struck down, abortion rights will not longer be constitutionally guaranteed in the U.S., and 13 states will immediately ban or severely limit access to the procedure.

Chief Justice John Roberts said the document does not represent the court's final decision. He called the leak a "betrayal of the confidences of the court" and ordered an investigation into how it happened.

Paul Schiff Berman is a law professor at George Washington University, who once clerked for the late U.S. Supreme Court Justice Ruth Bader Ginsberg. Here is part of his conversation with As It Happens guest host Helen Mann.

Just how much talk is there in Washington this week about who might be behind this leak?

There is talk both about the opinion itself and the tremendously extreme kind of radical version of overruling Roe v. Wade that it exemplifies, as well as, of course, speculation as to where the leak might have come from.

There have been complaints from some activists that there's been too much focus on the leak itself as opposed to the substance, and we will get to that. But in the meantime ... what kind of theories are you hearing?

I should say I have no inside knowledge, so I'm speculating just like anyone else. But I think the most likely source would be from one of the chambers of the justices that are in the majority, presumably, for this opinion. Potentially probably Justice [Samuel] Alito's chambers or Justice [Clarence] Thomas's chambers.

Because by releasing this opinion in the most maximal form possible, it makes it, I think, harder for any of the other justices in that majority to defect and perhaps join a more nuanced or less extreme version of this opinion that doesn't do away with Roe v. Wade altogether, and certainly not in the kind of extreme terms this opinion does. 

So I think by releasing this opinion, it sort of makes it harder for those justices to defect and perhaps makes it more likely that this majority will hold for this version of the opinion.

Pro-choice and anti-abortion demonstrators face off outside the U.S. Supreme Court on Tuesday. (Evelyn Hockstein/Reuters)

Who would have access to a draft opinion like this at this point?

A draft opinion, once it's completed, gets circulated to all of the chambers. So any of the justices, any of the clerks within the chambers of any of the justices [and] potentially secretaries within those chambers. 

There's also a permanent employee assigned to each chamber that's sort of like a page who messengers things around and does some other administrative work, so they could potentially have access.

The marshal of the court, Col. Gail Curley, is now investigating. How might that investigation unfold?

As far as I know, the marshal, who is usually involved in overseeing court operations and security, has usually focused on the security of the employees of the court against outsiders.

I'm not aware of an investigation of the court personnel themselves, but I would imagine that they would at least start by interviewing everybody in the building and try to see who had access and if anyone saw anything. Maybe they could trace the photocopier that the leaked document came from potentially if it were within the court. But I don't know what else they could do.

It really makes the court feel like just another partisan political slugfest kind of institution, and not like a rule-of-law institution that's committed to something that's enduring over time.- Paul Schiff Berman, law professor

Does the marshal have authority over the justices themselves if they chose, for whatever reason, not to co-operate?

I don't think so. You know, the justices have lifetime tenure. And so it's hard to figure out what a punishment would be for an individual justice.

I'm sure the chief justice would like to have a thorough investigation because I think this kind of a leak — and I would say combined with the contents of the actual opinion — really damages the reputation of the court and its institutional legitimacy. It really makes the court feel like just another partisan political slugfest kind of institution, and not like a rule-of-law institution that's committed to something that's enduring over time.

Paul Schiff Berman is a law professor at George Washington University, who once clerked for the late U.S. Supreme Court Justice Ruth Bader Ginsberg. (Submitted by Paul Schiff Berman)

When Politico published the draft, they made clear efforts to remove any identifying links that could show who provided this. So what are the chances that the person will be identified?

The most celebrated leak in anyone's memory is the Watergate "Deep Throat" leak. And that one held up for five decades until the person finally died, and Bob Woodward released the name and had been given permission to release the name.

So although there's a lot of interest in this, it's possible that the person will not be discovered.

If they are, what kind of consequences might they face?

It depends on who they are. Assuming that it is a clerk or a secretary or something like that, I would expect that they would get terminated from the court, first of all. And secondly, I think it would be hard for them to get other jobs, certainly other law-related jobs in D.C., or really anywhere in the U.S.

If it turns out that it was one of the justices that released it, then it's hard to say what the consequences would be because, of course, they have lifetime tenure. And I'm not sure other than their colleagues feeling like they misbehaved tremendously, that there's anything that can be done.

We both mentioned the fact that there are two tiers to this conversation, that the people who are really focused on the leak and then others saying, you know, that's not what's important here. It's the substance that matters. Do you think that people are kind of losing interest in the gossipy part and more focused on what this means for women and people who become pregnant in the United States that are seeking an abortion?

I really hope so. I think that obviously this will have a huge impact, assuming the opinion gets released this way, on women and their actual lives and life choices.

I think also the fact that this court majority seems poised to take the most maximalist position with regard to radically sweeping away of precedent — denying the idea that there are rights within the constitution that are not specifically delineated, but that are a core part of what liberty means — these are things that will have consequences, not just for the abortion rights, but potentially many other rights, like the right to contraception, the right to engage in consensual sexual relations in your own home, and so on.

And it suggests that there's really a radical faction of this court that is willing to completely remake the jurisprudence of the American constitutional system, despite the fact that those justices really don't reflect the American popular consensus in any degree.

That really, I think, will hurt the Supreme Court's legitimacy long-term and will help to erode the rule of law and be one more element of the kind of anti-democratic activity that is serving to hurt America's constitutional democracy. 

Written by Sheena Goodyear. Interview produced by Kate Swoger. Q&A has been edited for length and clarity.

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