The Supreme Leak

Should the public see the draft opinion?

While the country responds to the Supreme Court’s apparent majority decision striking down Roe v. Wade (albeit in draft form leaked by an unnamed source), media and Supreme Court watchers were struck by the unprecedented leak of a draft opinion. As Jonathan Peters explains on twitter, leaks coming from the Supreme Court may be rare but historically there is precedent. What has not happened is a leak of a draft opinion.

So how should we assess a story that provides a surprising, head-turning jolt when a source or sources are not publicly named?

Check the source of the story. In the case of the abortion draft opinion, ask first where the information is coming from. We don’t know the source who provided the draft to POLITICO, but we do know the news organization focuses on covering Washington as a small town, with all the rumor that would make Lady Whistledown envious (that’s a Bridgerton reference, people). It also publishes “verticals” covering one industry in detail. I have the fortune of having personally dealt with one of the reporters, Josh Gerstein, many times so his credibility allowed me to immediately believe that POLITICO believed the document to be authentic. But most people don’t have the luxury of knowing the reporter on a byline.

The day after publication, Chief Justice John Roberts did a big favor to wary news consumers by confirming the draft opinion’s authenticity. Roberts put to bed any doubt about the story itself and whether — in a world of conspiracy theories so embedded in public life that 60 Minutes profiled a spoof conspiracy theory — careful information absorbers must take a moment when any surprising story comes along to look on it with suspicion. In some leak stories, whether the story is true — or whether a document is what it says it is — often falls to the credibility and motivations of the source. Journalists in dealing with sources who wish to remain anonymous certainly consider a source’s motivations. They also independently verify a document is what it appears to be so in a sense the motivation of the source are irrelevant to determining whether the information is accurate. In this story, the draft opinion stands on its own regardless of whether the source wanted the story to come out to prepare the nation, “freeze” the majority’s votes, or call to arms a public response in upcoming elections.

How do we judge whether publication was justified given we expect the court’s final decision in only a month or two and the court historically has not leaked draft opinions? In other words, was this a good leak or a bad leak? We start from the premise that bad leaks are ones that do foreseeable and articulable harm to interests such as personal privacy, commercial competitiveness, national security without an overriding public interest in disclosure.

Here any potential damage from this story may be to the reputation of the Court itself, but that is not enough to withhold a newsworthy story on a matter of public interest. Clearly whether Roe v. Wade is overturned is a matter of profound interest to the public.

Any repetitional harm to the Court would come from the conservative majority overturning Roe after saying or strongly implying they would not do so during their confirmation hearings. Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh each made statements strongly implying they would not overturn Roe. Justice Samuel Alito’s biting dissection of Roe makes clear that his disdain for that decision came long before the case before the court did. Those considerations are matters of public interest and firmly belong in the public square.