• Legal experts at a Wednesday teleforum hosted by the Federalist Society discussed damage done to the Supreme Court by the leak of a draft opinion that would overturn Roe v. Wade.
• Panelists also discussed whether overturning Roe v. Wade would damage the legitimacy of the Supreme Court.
• The panelists expressed doubts that the leak would alter the outcome of the case.
• “I’ll be surprised if it changes very much,” Notre Dame Law School professor Sherif Girgis said.

Experts at a Wednesday teleforum hosted by the Federalist Society slammed the leak of a draft ruling that would overturn Roe v. Wade, with one calling protests outside the homes of justices an “implicit threat” and saying the leak would damage the Supreme Court.

The draft opinion published by Politico earlier this month and authored by Associate Justice Samuel Alito would overturn Roe v. Wade as “egregiously wrong from the start,” prompting backlash from pro-abortion activists and politicians while also drawing attention to the unprecedented leaking of a Supreme Court opinion. The experts on the panel worried that the leak could damage the court by chilling collaboration and debate among the justices and clerks during the process of preparing the opinions.

Dan Farber, a constitutional law professor at the University of California, Berkeley, noted that the leak’s damage to the Supreme Court went beyond the protests, while Notre Dame Law School professor Sherif Girgis expressed his hope that “the leaker is identified and sanctioned” to deter future leaks and to prevent the chilling of discussion as cases are decided.

“This is pretty crippling for the functioning of the court,” Girgis said. “One thing I was surprised by when I was a clerk was how much everybody in the building shares with everybody else. Opinions go out to the whole conference, not just the justices who voted with you at conference.”

.@SenDurbin: “I do not think it’s appropriate for protestors to target the homes of public officials, including judges or justices or their families. We have to ensure the safety of our federal judiciary and their families.” pic.twitter.com/TTPNsgEMTD

— Carrie Severino (@JCNSeverino) May 12, 2022

The leak led to protests outside the homes of the justices as well as a string of violent attacks and vandalism targeting pro-life groups, crisis pregnancy centers and churches. Many conservative commentators pointed to a federal statute that prohibits efforts to intimidate or influence federal judges on social media since the leak.

“There is an implicit threat any time you go to someone’s home. ‘We know where you live,’ and some of these justices have young children,” said Carrie Severino, president of the Judicial Crisis Network, praising Democratic Sen. Dick Durbin of Illinois for condemning the protests.

The panelists did dispute the notion that overturning Roe v. Wade would damage the legitimacy of the court.

“Since we have justices, the majority of whom have espoused an originalist approach to the court, I think as challenging as this case may be on a political level, on a moral level, it is not at all challenging on an originalist level,” Severino said. “If you are a committed originalist, there is no way that you can argue Roe or Casey is good law.”

“The thing that would make the court look more political in this case is for someone who says, ‘I’m an originalist and I apply originalism in every other case, but in this case, because it is so whatever – you fill in the blank – hot button, fraud etc., I’m not going to apply it,” Severino added.

The experts at the Wednesday teleforum also did not believe the leak will alter the outcome of the case or the tone of the ruling.

“I’ll be surprised if it changes very much, just because any changes that are made will be red-lined on Twitter,” Girgis said about the effects from the leaked draft of an opinion in Dobbs v. Jackson Women’s Health Organization during the forum.

Mary Ziegler, professor at Florida State University College of Law, noted that “to the extent the leak matters, it will make broad changes more unlikely.”

Panelists noted that the draft opinion is not the final ruling.

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