WASHINGTON — Sources have motives, and the leaked draft opinion quashing Roe v. Wade raises a question as old as the Roman Empire. cui bono? Who benefits?

Not the Supreme Court as an institution. Its reputation was in decline even before the extraordinary breach of its standards of confidentiality, with much of the nation convinced that it differs little from the political branches of government. The internal disarray the leak suggests was completely at odds with the decorum hailed by Chief Justice John G. Roberts Jr., and dealt a blow to the legitimacy of the court.

Also relations between the judges, on the evidence of questioning in arguments and statements in opinions, have become fraught and frosty. “Will this institution survive the stench it creates in the public perception that the Constitution and its reading are merely political acts?” Judge Sonia Sotomayor asked when Roe’s challenge was raised in December when it became clear that five judges were ready to overturn the decision.

The fact of the leak cannot be separated from its contents. Only an extraordinary step like abolishing a constitutional right that has been in effect for half a century could turn the court into an institution like any other in Washington, where rival factions reveal secrets in hopes of taking advantage of it.

“Until now, such a leak would have been unthinkable,” said Peter G. Verniero, a former New Jersey Supreme Court judge. “The protocol of our highest court has been seriously violated. The leak itself reflects another sad step toward throwing the court as a political body, which, whatever your favorite case law, is the most unhealthy for the rule of law.”

The court suffered collateral damage in March when it was found that Virginia Thomas, the wife of Judge Clarence Thomas, had sent inflammatory text messages to the Trump White House in the weeks leading up to the Jan. 6 attack and that Judge Thomas was not alone. managed to disqualify himself from a related case, but also had the only known dissent.

The damage from the leak was more immediate, raising the question of the court’s ability to function orderly.

Judge Samuel A. Alito Jr.’s Draft Opinion dated February 10 or nearly three months ago. Following the court’s usual practice, additional drafts have since circulated, as Judge Alito refined his arguments, made changes to accommodate his allies, responded to criticisms in one or more draft agreements or dissent — and, crucially, ensured that he did not lose his majority.

The draft was marked “court opinion”, meaning it was intended to reflect the views of at least five judges. Politico, who held the document, reported that five members of the court had voted to dismiss Roe shortly after the December argument: Judges Alito and Thomas and the three members of the court appointed by President Donald J. Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

Those five votes were in line with the questions the judges asked during the argument. They were also consistent with Mr Trump’s vow to appoint judges to overrule Roe, establishing a constitutional right to abortion in 1973.

“That line-up will remain unchanged from this week,” Politico reported.

Still, Judge Alito was undoubtedly concerned that Chief Justice Roberts, who outlined a middle ground during the argument, could threaten his majority. The chief justice suggested that the court could uphold the Mississippi law at issue in this case, which bans abortions after 15 weeks, but not outright dismiss Roe.

That stance would have been considered extreme just a few years ago, as it would eliminate the key element of Roe and of Planned Parenthood v. Casey, the 1992 decision that reaffirmed what it called Roe’s “central position” — that “a state cannot forbid any woman from making the final decision to terminate her pregnancy before she is viable.”

Viability, the fetus’s ability to survive outside the womb, is around 23 weeks these days, meaning Mississippi’s 15 week law is downright at odds with Roe and Casey. But the Chief Justice’s approach, whether viewed as step-by-step or principled, would have made abortion possible for many people for the time being.

In an editorial last week, The Wall Street Journal expressed concern that Chief Justice Roberts was trying to persuade Judges Kavanaugh and Barrett to take his narrower approach.

So perhaps the intent of the leak was to detain the conservative majority of five judges.

“I would be wary of coming to the conclusion that the leaker is necessarily someone who opposes the overthrow of Roe v. Wade,” said Richard L. Hasen, a law professor at the University of California, Irvine. .

Kermit Roosevelt, a law professor at the University of Pennsylvania, said the source was likely trying to raise the price of the position swap.

“In terms of who leaked it and why, it seems much more likely to me that it came from the right in response to an actual or threatened defection by one of the five who voted to overthrow Roe,” he said. “Leaking this early draft makes it more expensive for a defector because people will now think they changed their vote after the leak in response to public outcry.”

Professor Hasen said there was another benefit to the right of disclosure of the draft opinion.

“In fact, this kind of leak could help the likely future majority to topple Roe if it diverts the conversation to the issue of Supreme Court secrecy and the danger of leaks to the legitimacy of the trial,” he said. “That’s better than a conversation about the possible illegality of overturning a long-standing precedent that enables reproductive choice. It could also be meant to soften the blow by signaling the coming earthquake to everyone.”

Even when Chief Justice Roberts said on Tuesday he had ordered an investigation into what he described as a “serious breach of trust,” it was not clear that the leak violated the law. As Chief Justice Warren E. Burger wrote in a footnote in his dissent in the Pentagon Papers case, who refused to block the publication of a classified history of the Vietnam War: establish and enforce security measures. for the secrecy of our deliberations and reports.”

Nevertheless, he noted, the court is not powerless to eradicate and punish the source: “I have little doubt about the court’s inherent competence to protect the confidentiality of its internal operations by whatever judicial action is required.” .”

The reasoning in the draft opinion is what one would expect from Judge Alito, a fierce critic of Roe and Casey, said Richard W. Garnett, a law professor at Notre Dame.

“It is unlikely that observers or commentators familiar with the case would be really surprised by the possibility that Justice Alito drafted a majority position stating that those decisions were ‘abnormally wrong,'” said Professor Garnett.

In any event, the intentional leak of a draft opinion by an employee or member of the court would be a serious betrayal of trust, especially if the leak were an attempt to further partisan ends or to undermine the work and legitimacy of the court. undermine,” Professor Garnett added. “Whatever our views on certain legal issues, we should all hope that the judges will not be influenced or influenced by such efforts.”

The Supreme Court confirmed on Tuesday that the draft opinion was authentic, but warned that it “did not represent a final court decision or a member’s final position on the issues in the case”. Lynn Fitch, Mississippi’s attorney general, said in a statement, “We will let the Supreme Court speak for itself and await the court’s official verdict.”

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