Fallout continues after the leak of a draft U.S. Supreme Court opinion that will, if eventually published, overturn the famous abortion case Roe v. Wade.
Court watchers and others were shocked by the leak to Politico. The opinion was apparently written in February by Justice Samuel Alito.
I’ve listened to and read opinions by various pundits since the draft was released.
Not surprisingly, those with pro-life leanings see the ruling, if published as written (or substantially so), as a victory.For many of those for whom it is a religious issue, it isperceived as an answer to prayer. Pro-choicerssee itas a slap in the face to women and their right to have control over their own bodies. Both sides are at times overlooking that the ruling, as written in the draft, would not ban abortions but, rather, return the matter to state legislatures.
Days after the leak, the "Saturday Night Live" bits were what one would expect, sarcastically hypothesizing howthe majority of justices reached their conclusions. Because, you know, the folks at SNL know everything about writing legal opinions.
And don’t get me started on the protests outside the homes of justices. I am going to choose to believe this represents a small subset of pro-choice proponents.
(And lest the pro-life crowd become self-righteous, Justice Harry Blackmun, who wrote the opinion in Roe, received all kinds of death threats after it was handed down years ago. The crazies will always be among us.)
We will not go into all that today.
What I find most disturbing about the leak is that it happened at all.
After law school, I went to work as a law clerk for a trial court judge. It was a great experience and, ironically, it was during the 16 months I spent there that I decided I would not choose to have a career in a courtroom. But that’s another story.
Perhaps the most valuable lesson I learned during my timewith the judgewas the importance of confidentiality. He brought me into many private discussions about cases in his court. During the first one, he stressed how important it was that our conversations about those cases, prior to final verdicts, were never to be discussed outside his chambers.
Many of his cases were decided by juries, in which he did not have to make the final decision. But he also had bench trials in which he made the ultimate call, and there were administrative cases he also handled which involved some substantial decision making on his part. I was honored to take part in discussions with him regarding the merits of the cases, and how they might turn out.
As my family will attest, I will sometimes say the wrong thing at the wrong time. I don’t mean to do it, but I am a poster child for the Bible verse stating how difficult it is to tame the tongue.
But the judge impressed upon me the sanctity of the discussions we had in his chambers. I would have never, ever discussed them away from there – with anyone.
Somewhere within the bowels of the United States Supreme Court, however, someone decided to compromise.
And with that terrible decision, the integrity of the judicial system and the highest court in the land were put in peril. If the justices presiding over the United States Supreme Court cannot trust in the confidentiality of deliberations and discussions, and drafted opinions for that matter, leading up to the rendering of final decisions, then what is the worth of that institution?
Since the leak, there have been allegations that trust in the high court has eroded. There are those who believe it was the one branch of government free from undue influence, and now that is gone. But Chief Justice John Roberts is not convinced all hope is lost. He believes this is a momentary setback.
“Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court” he said, vowing to investigate and prosecute the perpetrator of the leak.
Continuing, he said, “this was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”
It is not as if there have not been previous chinks in the armor that is the American system of government.But the Supreme Court has managed to largely stay above scandal, as we would certainly hope and pray it would.
I choose to believe as Justice Roberts does, that although an unscrupulous insider chose to risk everything for reasons we do not fully know, the judicial branch of government will withstand this breach of trust.
A terribly misguided insider of the institution might have made a severe error in judgment, but the institution is still strong.
I think we all must hope that to be true.
Bob McKinney is a longtime Brentwood resident, happy husband and proud father, father-in-law and grandfather. Email him at [email protected].