By Mark Tapscott
Supreme Court justices should immediately issue their official opinion in Dobbs v. Jackson following the bombshell leak of a draft opinion in the case that would overturn Roe v. Wade, according to a key figure in recent major congressional judicial battles.
The leaked draft indicates that five justices agreed, at least as of the February date of the draft, in deciding Dobbs v. Jackson to undo the 1973 Roe v. Wade decision. Doing so would return the power to decide abortion policy to state governments. The result would be that abortions would become generally available in some states and much less available, or perhaps not at all, in other states.
“Over the past several years, we have watched the radical left become increasingly brazen in their attempts to delegitimize and bully our nation’s highest court,” Article III Project (A3P) founder and President Mike Davis said. “This unprecedented leak is a stunning, shameful, and likely illegal attempt to obstruct the court’s deliberations on a pending case, and it puts the lives of the Justices in danger.”
He said in a statement issued shortly after Politico published the draft opinion that “to prevent any further harm, the Court must issue its decision immediately, and an investigation must be launched to determine who is responsible.”
Davis was chief counsel for nominations for then-Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and led the Republican staff during the Senate confirmation battles for Justice Brett Kavanaugh and a record number of U.S. Circuit Court judges nominated by former President Donald Trump.
Davis founded A3P as a nonprofit advocate for “constitutionalist judges and the rule of law.”
Supreme Court Chief Justice John Roberts shouldn’t hesitate to ask the FBI to investigate the leak and to help in an overall assessment of the third branch’s internal security management capabilities, Heritage Foundation Senior Legal Fellow Hans von Spakovsky told The Epoch Times.
“The Chief Justice should immediately ask the FBI to investigate this shocking breach of the confidentiality of the work done by the Court. It could not function without that confidentiality, any more than a law firm could function if it had law clerks who leaked the firm’s internal communications, work product, and privileged materials,” von Spakovsky said.
Asked if the high court should establish a Sensitive Compartmented Information Facility (SCIF), a “safe room” with limited and supervised access for the law clerks who do much of the research and opinion drafting for the nine justices, the Heritage constitutional law expert said that “Roberts, as part of his investigation to find out who did this, needs to get recommendations from the Marshal of the Court and the FBI on anything that can be done to strengthen the security protocols of the court. I don’t know if they need to go to a SCIF-like safe room, but they clearly need recommendations from their security people on what can be done to prevent this.”
Von Spakovsky said he believes that the leak originated from “a very radical, activist clerk who wants to stir up liberal hysteria to intimidate and pressure the justices to uphold the Roe decision and help progressives in the November elections.
Asked if he expects riots or other forms of violence, von Spakovsky said he hopes not, but “when it comes to civil unrest and violence, our history shows that almost always comes from the radical left.”
Roberts said in a May 3 statement that he’s directing the Marshal of the Court to investigate the leak, but the chief justice provided no details on the scope of the effort, the resources that will be available to it, or if the FBI or other executive branch law enforcement agencies will be involved. The Marshal of the Court is separate from the U.S. Marshals Service and oversees the Court’s 200 security officers.
Each of the nine Supreme Court justices has four law clerks and three administrative aides, all of whom would have some level of access to draft opinions and other internal documents related to decisions, for a total of 63 potential suspected leakers, as well as an unknown number of information technology people who might have access.
The core challenge posed by the leak is that it requires an internal focus, whereas the Court’s security personnel are mainly concerned about external threats. And the separation of powers among the three branches must also be respected.
Davis said he has “absolute confidence that Roberts will protect the integrity of the court,” but that doing so requires that there be no congressional or executive branch investigative activity, except as requested.
“No, you don’t want them sticking their noses in this thing,” regardless of which party controls Congress or the executive branch, Davis said. “We have the first constitutionalist majority on the Supreme Court in 90 years. We have to protect that; we don’t want either of the political branches to meddle in the internal proceedings of the Supreme Court.”
Davis was also skeptical of the practicality of a court SCIF.
“It’s just not practical, you need to have back-and-forth on these decisions every day,” he said. “This is the first leaked opinion in the Court’s history; this is not the norm.”
By contrast, Judicial Watch President Tom Fitton told The Epoch Times that “you should use every tool at your disposal to figure out who is responsible for the leak. Similarly, Congress should as well, because all of the branches of government have an interest in, and a duty to protect, the constitutional structure of our system, so this attack on the court is an attack on the rule of law.”
Fitton said, depending on the specifics of the situation once the leaker is identified, there are several laws that may have been broken.
“It’s obviously an obstruction of justice,” he said. “Think of the laws that are being pursued against the Jan. 6 insurgents for trying to obstruct a congressional proceeding.”
Fitton also suggested that the court can “vindicate its own powers by pursuing criminal contempt proceedings against anyone who did this.”
But determining what specifically the leaker might be charged with could be extremely complicated, according to another Heritage Foundation legal expert, senior legal fellow Sarah Marshall Perry.
“Whether or not there are criminal penalties that might be attached to this is something we are researching, but, among other things, there might be a claim for theft of government property,” she told The Epoch Times.
“There is specifically no investigative protocol within the Supreme Court because this is an unprecedented situation. In the past, we have seen certain editorials or certain bits of information indicating someone had first-hand advance knowledge, but there has never before been a full release of a draft Supreme Court opinion.”
Perry said separation of powers concerns are always justified, but she noted that “there have been calls in Congress to hold the court to its own ethics rules and introduction of bills like the ‘Judiciary Accountability Act’ to manage employment regulation within the federal judiciary.”
The biggest issue now confronting the Court is whether the internal trust and confidence required to have honest and open legal debates in reaching a decision have been lost as a result of the leak, according to First Liberty Institute President Kelly Shackelford.
“I’m just not sure the Court can ever recover. I mean, you have this confidential discussion that goes on internally,” Shackelford said. “This is the ultimate betrayal of the Supreme Court, and I am not sure it will ever be the same.”
Richard Manning, president of Americans for Limited Government (ALG), told The Epoch Times that “leaking a first-draft opinion to the media destabilizes the Supreme Court with the goal of delegitimizing the decision. Chief Justice Roberts must root out the perpetrator and summarily dismiss that person. The court operates on a unique basis of mutual trust. Once this trust is breached, it is almost impossible to reestablish. And without it, the court is in danger of falling into the same trap of political rancor that besets the rest of Washington, D.C.”
Seton Motley, head of LessGovernment.org, told The Epoch Times that he believes that “it is well within Congress’s oversight authority to investigate the leak. This is about how the court functions, not the decisions it renders. And Republicans should promise to do so if given the majority.”