The Impact Of The Leak

On Saturday, NewsMax posted an article featuring Justice Clarence Thomas’ comments about the leak of the Supreme Court draft of the abortion decision. Notice that somehow the leaker has not yet been identified.

The article reports:

Justice Clarence Thomas says the Supreme Court has been changed by the shocking leak of a draft opinion earlier this month. The opinion suggests the court is poised to overturn the right to an abortion recognized nearly 50 years ago in Roe v. Wade.

The conservative Thomas, who joined the court in 1991 and has long called for Roe v. Wade to be overturned, described the leak as an unthinkable breach of trust.

“When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity that you can explain it, but you can’t undo it,” he said while speaking at a conference Friday evening in Dallas.

…Thomas, a nominee of President George H.W. Bush, said it was beyond “anyone’s imagination” before the May 2 leak of the opinion to Politico that even a line of a draft opinion would be released in advance, much less an entire draft that runs nearly 100 pages. Politico has also reported that in addition to Thomas, conservative justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had voted with the draft opinion’s author, Samuel Alito, to overrule Roe v. Wade and a 1992 decision, Planned Parenthood v. Casey, that affirmed Roe’s finding of a constitutional right to abortion.

Thomas said that previously, “if someone said that one line of one opinion” would be leaked, the response would have been: “Oh, that’s impossible. No one would ever do that.”

“Now that trust or that belief is gone forever,” Thomas said at the Old Parkland Conference, which describes itself as a conference “to discuss alternative proven approaches to tackling the challenges facing Black Americans today.”

There is a need for confidentiality in Supreme Court negotiations and drafts. Justices need to be free to offer opinions, popular or unpopular, to reach a consensus on a decision. Knowing that drafts or notes from these deliberations are subject to being leaked could seriously impact the debates needed to rule on an issue. It bothers me that no one has yet been held responsible for the leak (only a small number of people had access to the draft), and the news reports do not see to be interested in finding out who the leaker is. This leak needs to be dealt with quickly and strongly in order to prevent future leaks.