The leak of a draft majority opinion reversing Roe v. Wade, the landmark 1973 Supreme Court ruling legalizing abortion, was an unprecedented breach in a process typically shrouded in secrecy and a blow to the nation’s highest court, which in recent years has been plagued by questions about its impartiality from both the left and the right. In a statement released Tuesday, Chief Justice John Roberts confirmed the authenticity of the draft, written by Justice Samuel Alito, but insisted that it was not final. He called the leak a “singular and egregious breach” and said that he has directed the marshal of the court to investigate its source.
The Gazette spoke with Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law, Emeritus, at Harvard Law School, about the leak, how it might have happened, and what it could mean for the court’s reputation and the outcome of the case. The interview was edited for clarity and length.
Laurence H. Tribe
GAZETTE: How many people have access to a draft like this, and how could it have been leaked to the press?
TRIBE: It could easily be leaked by any of the justices or by any of their law clerks because all of the clerks in all nine chambers would have seen the draft that was circulated by Justice Alito on Feb. 10. There are plenty of people who were capable of leaking it. But this is obviously an unprecedented thing, and that makes it much harder for the court to operate effectively if confidentiality is compromised, which is why I was not at all surprised to see the Chief Justice announce an internal investigation to see where the leak came from. I really have no speculation as to whether it is more likely to have come from the chambers of one of the justices who, at least initially, were with Justice Alito in deciding to uphold the Mississippi law and also to overrule all of the abortion jurisprudence that dated to 1973 and perhaps some of the decisions on which Roe v. Wade depended. Whether it came from one of those chambers, or more likely one of the liberal chambers, you could come up with any number of possible motivations for the leak.
GAZETTE: Justice Roberts says that the leak will not undermine the integrity of the court, but it seems like the public confidence may be permanently damaged by this kind of breach.
TRIBE: It seems to me it’s more damaged by the obviously partisan divisions within the court than by the court’s ham-handed attempts to persuade people that the political and ideological orientation of justices on the right or on the left somehow has nothing to do with the way they view legal issues. That pretense — by Justice Stephen Breyer in his book and by Justice Amy Coney Barrett and some of the other justices on the speaking circuit — I think itself undermines the court’s legitimacy, because it so obviously displays a lack of candor on the part of the justices. The legitimacy of the court ever since Bush v. Gore has been teetering in various ways, and I think the leak itself just reaffirms people’s view that the court is subject to lots of infighting and maneuvering.