Legal experts delve into SCOTUS Roe v. Draft leak calf

If the person prosecuting the Supreme Court’s draft opinion in the crackdown on Roe v. Wade was attempting to change one of the judiciary’s ultimate opinions with public outrage – the move was a mistake, legal experts tell The Post.

“If this leak was made with the intention of influencing the behavior of judges, it seems to me that whoever made that decision was really wrong,” said Richard Garnett, professor of speech, association and religious studies Constitutional Law at Notre Dame.

“I just can’t imagine there being any judge who would change their vote or position based on this leak,” added Garnett, who worked as a former court clerk for the late Chief Justice William Rehnquist in 1996, stressing the possibility ” unlikely.”

Sarah Perry, a senior legal fellow at the Heritage Foundation’s Institute for Constitutional Government, echoed this sentiment, saying the outcome was expected in the conservative community because of the court’s conservative-majority composition.

Supreme Court
Legal experts tell the Post that Supreme Court justices are unlikely to change their votes based on the leak.
POOL/AFP via Getty Images

“And based on what we’ve heard in oral arguments — which seemed to indicate that this was an opinion rested on shaky constitutional grounds and it was time to go,” Perry said. “So I don’t think it will affect what we expect from a final draft.”

Late Monday night, a Politico report released the leaked draft opinion, which many have since wanted an extraordinary High Court breach.

The Majority Opinion, drafted by Judge Samuel Alito, calls Roe “enormously wrong from the start” and cites that the Constitution makes no mention of abortion.

protest against abortion
Pro-choice activists protested outside the Supreme Court after the draft was leaked.

Almost immediately after the document was leaked, pro-choice activists and supporters protested outside the Supreme Court in Washington, DC, as well as online. Since then, dozens of lawmakers have rejected the draft statement, with President Biden calling it “radical.”

Despite mounting public pressure, Martha Davis, a professor of constitutional law at Northeastern University and author of an amicus brief calling on the Supreme Court to overturn Mississippi’s tough abortion law, told The Post she doesn’t think it’s big will have an impact.

“But I also don’t think it’s set in stone,” she said. “I think to the extent that it’s changing it won’t be the result of the protests in front of the youth – you know these have been going on for years and years. But it will be because of Alito. The tone of his draft opinion is extremely malicious. I don’t think the majority of judges are likely to want an opinion that is so demanding of previous court opinions and their former peers.”

Constitutional law professor Martha Davis says if judges change their minds, it won’t be because of public pressure created by the leak.

Ernest Young, a former clerk of Justice David Souter in 1995-1996 and current professor of constitutional law at Duke University, also said the draft could differ from the final opinion, saying that while he was a clerk, some of the first drafts were created The majority was “rather biting”.

“It was pretty clear that this was just free time, none of it would stick. I don’t think that’s the nature of that opinion,” he said, adding that early drafts are often really different from the final result.

It’s unclear how the leak will change the way the Supreme Court operates.

Garnett told The Post that the court already has procedures and “very clear rules” in place to prevent such leaks, adding that “it’s not obvious to me what else the court can do to get someone to.” prevent who has been attacked, you know, thereby breaching his or her duties.”

abortion protest
Former court clerk Ernest Young said first drafts are often changed when they are final opinions.

However, some believe that some action still needs to be taken.

“I think the court will tighten up,” Young said. “I think they will be able to stay in control. I’m not sure what they will do, but I think they will consider that much more carefully.”

The former Souter employee said the leak’s effects could “actually be salutary,” suggesting the court “may be more reluctant to hire people with extreme views.”

abortion protest
A protester holds a sign during a protest outside the Supreme Court after reports of leaking the draft majority opinion.

Recalling his own experience, he said “none of our ideological views was more important” than maintaining their relationships with the judges they worked for and with the court itself.

“I think they’re just — maybe they’re trying to hire more moderate people,” Young said. “Maybe that’s not so bad. But, I mean, but it would be unfortunate that there are a lot of people who are out there in terms of personal views but are also able to put those views aside and get the job done.

Perry called the Supreme Court “a self-policing arm” and cited Chief Justice Roberts’ decision to investigate the leak as evidence that the court “is destined to find out where this came from.”

“If anything, we will see his renewed commitment to the fact that this is a non-political industry and judges themselves are subject to their own level of integrity and self-control, as Justice Roberts has made clear.” Perry added.

“If anything, we’re going to see increased self-regulation, probably internal changes, how they manage their confidentiality, how they maintain the rigor of their non-disclosure requirements, but I don’t think that will affect the status or outcome or structure that federal jurisdiction enters.” Future.”

protest against abortion
Two protesters gather during a news conference on the future of women’s reproductive rights at the Massachusetts State House on May 3, 2022 in Boston, Massachusetts
AFP via Getty Images

Young also suggested that it was “at least plausible” that the leak of the draft opinion was meant to affect the election, not the judges’ opinion.

George Washington University legal scholar Jonathan Turley agreed, saying, “It is more likely to strengthen majority engagement in the face of public efforts to pressure or influence the court.”

“The leak immediately sparked calls for the Roe Codification Act to be passed, as well as renewed calls for the filibuster to end,” Turley said, calling it a “grave ethical violation.”

Jeff Hunt, director of the Centennial Institute, told The Post that the aftermath of the leak “will definitely energize the pro-choice base because they’re going to feel like they lost here and that they’re going to have to vote for the officials.” endure abortion.”

protest against abortion
After the leak there were calls to end the filibuster and to legislate abortion.

Still, Hunt questioned whether the pickup would be “enough” to cover other Democrat issues like inflation.

Davis also said the leak could “galvanize for the majority of people in the country who support abortion,” adding that it could increase turnout in November’s midterm elections.

Meanwhile, Perry hinted that Democrats expect heavy losses in the midterm elections and hinted that the leak may have been caused by someone who “has invested in making sure Democrats maintain some sort of political capital.” headed for fall.

Samuel Alito Jr
Davis called the tone of Justice Samuel Alito’s draft “extremely vicious.”
Bloomberg via Getty Images

However, the broader implications are yet to be seen, Garnett told The Post.

“I would think as a former clerk and as a lawyer I would really regret it if this thing became more common because … that really is an outrageous betrayal if it came from a court clerk.” Legal experts delve into SCOTUS Roe v. Draft leak calf


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