The behind-the-scenes look into the Supreme Court’s decision to overturn Roe v. Wade published by The New York Times Friday had legal experts raising renewed concerns about the confidentiality of the high court’s private deliberations.
Citing “internal documents, contemporaneous notes and interviews with more than a dozen people from the court,” the NYT presented an insider’s account of the making of the Dobbs v. Jackson Women’s Health Organization decision, including the quick assent of the majority to Justice Samuel Alito’s draft opinion and Justice Brett Kavanaugh’s proposal to delay announcing that they would accept the case until more time had passed since Justice Ruth Bader Ginsburg’s death. The details included in the account raise an “alarming” continued confidentiality problem following the leak of Alito’s draft opinion in May 2022, legal experts said in response.
George Washington University Law School Professor Jonathan Turley wrote Friday that the report turns “a confidential process into a virtual fishbowl where justices now must expect that their internal responses will be publicly aired.”
“After the leaking of the Dobbs draft itself, the latest story on the response of justices to the draft from within the Court is alarming,” he wrote. “The NY Times is quoting people on how and when justices responded to the draft, deliberations that are usually fiercely protected by the Court.”
He noted that failing to find the person responsible for leaking the decision “has destroyed a culture of confidentiality and civility.” (RELATED: Samuel Alito Says He Has A ‘Pretty Good Idea’ Who Leaked The Dobbs Opinion)
Former Assistant Attorney General Jeff Clark likewise posted Friday that the article “worsens” the leak of the Dobbs opinion with details about internal deliberations.
“We used to have to wait for these kinds of details until notes or diaries of the Justices were released after long intervening periods of time to help the judgment of history and not the passions of politics form,” he wrote.
The article reveals, among other things, that Justice Neil Gorsuch signed on to Alito’s draft within 10 minutes of him sending it out. It also notes Justice Amy Coney Barrett switched her vote to take the case before the court made its announcement in May 2021, citing “several court insiders and a written tally.”
After the leaking of the Dobbs draft itself, the latest story on the response of justices to the draft from within the Court is alarming. The NY Times is quoting people on how and when justices responded to the draft, deliberations that are usually fiercely protected by the Court
— Jonathan Turley (@JonathanTurley) December 15, 2023
Clark wrote that “tradition and confidential deliberations on the Court [are] being destroyed before our very eyes.”
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said the article demonstrates “appalling further leaks that undermine the work of SCOTUS,” casting doubt on suggestions it makes based on “misleading and dishonest framing.”
“For example, the smear that Alito improperly ‘pregamed’ his draft opinion among friendly colleagues—which is the lede of the piece—is belied several paragraphs later in acknowledging that ‘selective preview’ is a ‘time-honored’ practice,” he wrote.
Ethics and Public Policy Center Antonin Scalia Chair in Constitutional Studies Ed Whelen noted the bigger question is who at the Court is leaking to the NYT.
“As anyone who works at the Court ought to recognize, leaking ‘on the condition of anonymity’ violates a duty of confidentiality,” he wrote in the National Review. “The fact that it makes it easier for the violator to escape detection does not remotely justify it.”
He also said he remains “skeptical that the sources are as balanced as [the article] might try to suggest and that they include anyone supportive of the Dobbs majority.”
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