The Second Supreme Court Leak: What It Means for Our Rights

The Supreme Court, usually revered and placed on a pedestal, have possibly been kicked off their high horse. After two leaks in the last year, the American people are starting to question if the Justices truly hold all Americans at heart when making monumental decisions.

Even elected officials, such as Senator Lisa Murkowski (R-AK) say that their confidence in the Court is shaky following the leaks. Justices have become partisan and dependent on tycoons in Washington. The American people are apprehensive about judicial independence because they believe personal political views should be kept out of their rulings.

Roe v. Wade Breach

In the wake of the Roe v. Wade Supreme Court leak, United States citizens are left with a sinking feeling of betrayal. Referred to as “a grave betrayal of trust by somebody,” both Supreme Court justices and citizens alike felt deceived by the people they felt they could trust, or rather need to trust.

Following the initial breach, which explicitly “overturned Roe v. Wade and 50 years of the Court’s own legal precedent upholding the constitutional right to abortion,” was written by Justice Samuel Alito. In his opinion, he wrote that Roe was “wrong from the start.” After confirmation that the leak was authentic, Justice John Roberts also said that it “does not represent a decision by the Court of the final position on any member on the issues in the case.” Theories surrounding the initial leak may only be confirmed by the second leak which was reported on November 19, 2022.

The original leak spurred the theory that “the publicity will deter them from doing so [jumping ship] because they will be worried about sending a message that they were somehow cowed into changing their votes by the public blowback,” said ABC News Supreme Court contributor Kate Shaw. So, if a justice were to change their opinion to possibly save abortion rights after public backlash, it would undermine the system of the Supreme Court as is. An additional theory was that a conservative leaked the opinion to soften the ground for the ultimate decision.

Burwell v. Hobby Lobby Breach

But, this second breach was reported in the New York Times. Reverend Robert Schenck was told in advance the outcome of a major 2014 United States Supreme Court case, Burwell v. Hobby Lobby. The case, similarly to Roe v. Wade, involved contraception and religious rights. During a dinner with Justice Samuel Alito, the Reverend was informed of the case and in turn used this knowledge to prepare a public relations campaign and tip off the president of the Christian, evangelical-run craft store chain. Though, after this report by the Reverend, Justice Alito said these claims were false.

After Roe v. Wade was overturned, Schenck came clean about the Burwell v. Hobby Lobby leak. In a letter released by the Times, Schenck again confirmed what he had given to the Times and admitted that since the time of the leak, he has changed his views about abortion. The Times also corroborated Schenck’s account by reviewing the emails and records available. Schenck admitted that he had learned the information from Gayle Wright after a dinner with Justice Alito. Yet, Gayle Wright denied the allegation. His goal was to build relationships with court conservatives to then influence them on abortion-related issues. Senate Judiciary Committee Chairman Dick Durbin (D-IL) says that the committee is investigating the allegations of the leak. This breach was a cue in a right-wing campaign to undermine the separation of church and state.

Our Rights: How To Help

Where many Americans already lack trust in systems like the Supreme Court, leaks and breaches as we’ve seen in the past year only add fuel to the fire of distrust. In fact, “for many court observers, the leak may do long-lasting harm to the Supreme Court.” The Supreme Court as an institution requires institutional secrecy and integrity, therefore breaches of trust such as the above are detrimental to the system in place. Mitch McConnell even referred to the leak as “an attack on the independence of the Supreme Court.”

But what can we do? An investigation “won’t solve the court’s most serious problem: While it claims to be a nonpartisan, neutral arbiter of the law, its conservative majority was deliberately cultivated to expand religious freedom for conservative Christians at the expense of the rights of those deemed less worthy of protection.” The Court has a serious bias towards conservative Christians and does not represent and protect the freedoms of all Americans. Supreme Court Justices must adhere to a judicial code of conduct so that conflicts of interest and biases are not present in their decision making. Fixing the blatant disrespect of Justices requires a judicial code of conduct and more to reform the Supreme Court.

Works Cited

Woodward, Calin and Hannah Fingerhut. “Supreme Court leak further erodes public trust in government.” PBS NewsHour. PBS, May 8, 2022. https://www.pbs.org/newshour/nation/supreme-court-leak-further-erodes-public-trust-in-government

Reuters. “Report: 2nd Major US Supreme Court Leak Draws Calls for Probe.” VOA. VOA, November 19, 2022. https://www.voanews.com/a/report-2nd-major-u-s-supreme-court-leak-draws-calls-for-probe-/6842174.html

Stohr, Greg. “A second Supreme Court leak reported by former abortion foe, NYT says.” Lewiston Tribune. Bloomberg News, November 20, 2022. https://lmtribune.com/northwest/a-second-supreme-court-leak-reported-by-former-abortion-foe-nyt-says/article_e82bdc08-2933-5164-8ae7-1ff93f6600e7.html

Barnes, Robert and Ann E. Marimow. “Justice Alito denies disclosing 2014 Hobby Lobby opinion in advance.” The Washington Post. The Washington Post, November 19, 2022. https://www.washingtonpost.com/politics/2022/11/19/alito-hobby-lobby-supreme-court-nyt/

Barnes, Robert and Ann E. Marimow. “Supreme Court will investigate leaked draft of abortion opinion.” The Washington Post. The Washington Post, May 3, 2022. https://www.washingtonpost.com/politics/2022/05/03/supreme-court-leak-investigation-abortion-roe-wade/

Breuninger, Kevin. “Supreme Court says leaked abortion draft is authentic; Roberts orders investigation into leak.” CNBC. CNBC, May 3, 2022. https://www.cnbc.com/2022/05/03/supreme-court-says-leaked-abortion-draft-is-authentic-roberts-orders-investigation-into-leak.html

Mielke, Brad and Haley Yamada. “Who leaked Supreme Court draft opinion on landmark Roe v. Wade abortion precedent?” ABC7. ABC7, May 4, 2022. https://abc7.com/roe-v-wade-abortion-supreme-court-leak-leaked-opinion/11817166/#:~:text=The%2098%2Dpage%20opinion%20leaked,for%20abortion%20rights%20in%20America%3F&text=A%20leaked%20draft%20opinion%20indicates,wide%20overhaul%20of%20abortion%20rights

Posner, Sarah. “The Hobby Lobby leak looks bad for Justice Alito. But that’s not the worst part.” MSNBC. MSNBC, November 23, 2022. https://www.msnbc.com/opinion/msnbc-opinion/hobby-lobby-leak-looks-bad-justice-alito-not-worst-part-rcna58360