Boris Ignachkov The legal industry around the world has its attention on the recent leak of a US Supreme Court draft opinion document, which is likely to have very significant implications for the integrity and trust in the Court, as well as for American citizens.
What Was The Case?
Roe v Wade challenged the constitutionality of Texas’s criminal abortion legislation, contending that the legislation was an infringement of Constitutional rights. The US Supreme Court held in this landmark case that it was a constitutional right that a woman’s right to privacy, under the Fourteenth Amendment, encompasses her right to choose to have an abortion.
What Has Happened?
The leaked 98-page Supreme Court draft document was first published on May 2 by Politico, which indicated a majority of the nine US Supreme Court Justices plan to overturn the Roe v Wade decision that legalizes abortion. The document leaked was an opinion of the court, and has been confirmed as authentic by Chief Justice John Roberts.
The opinion of the majority of Justices was that the decision of the 1973 Supreme Court in Roe v Wade was erroneous, stating that the court usurped its power over the legislature, and as the Constitution does not explicitly confer the right to abortion, it should not be interpreted as such. According to the leaked document drafted by Justice Alito,“[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” which puts the onus on the legislative branch to change laws.
What are the Implications of a Leak of This Magnitude?
As concerning as the far-reaching implications this decision could have on society, if the court decides to overrule the significant precedent of Roe v Wade, is the enormity of the leak itself. The US Supreme Court is the highest court in the United States which addresses cases and contentions that arise under the Constitution and US laws.
While extremely rare, leaks from the Supreme Court are not unprecedented; however, leaking an entire draft majority opinion document is, and there has never been a leak of this magnitude. The leak of a Supreme Court document is a flagrant breach of security and a breach of trust, which will very likely have irreparable damage to its legitimacy, its credibility, trust of the public, as well as its duty to uphold the law. As individuals within the legal profession, it is expected that we adhere to the highest level of professional conduct.
As the leak appears to have come from the inside, from someone in a trusted position, it calls to question the ethics of those within the Court. This leak could, and probably should, lead to procedural changes within the Supreme Court. Additionally, not knowing who leaked the document, with all parties denying culpability, could lead to distrust amongst the Justices, their clerks, and court staff.
Although the Court has experienced a massive breach of security, it appears that there are no federal criminal laws prohibiting the disclosure of Supreme Court draft opinions, as they are not actually classified documents. However, even if the leaker has the authority to access the said document, they could still face charges for removing federal government property. If the leak is found to have come from a lawyer, which would certainly be considered unethical and unbecoming behaviour for any member of the Bar, then the Bar will likely investigate, and this could result in disbarring.
The final decision by the Supreme Court on Roe v Wade is not due until the end of June.
