The Dobbs v. Jackson Women’s Health Organization, more commonly remembered as the case that overturned Roe v. Wade, had a document leaked on May 2, 2022 [1]. This document was a majority opinion draft written by Justice Samuel Alito and disclosed the fact that the Supreme Court had plans to overturn both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey [2]. In the leaked opinion draft Justice Alito stated that the US Constitution offers no implicit protection to abortion and that the cases of both Roe and Casey do not meet the requirements to be protected under the fourteenth amendment [3]. The document even went as far as to state that the Roe v. Wade case “was egregiously wrong from the start” [2]. The Dobbs v. Jackson case was a monumental case in Supreme Court history and the leaked draft only added to the publicity that the case received.
For as monumental of a case as the Dobbs v. Jackson case was the leaked draft is equally as historically significant. The leak represents the first time that a US Supreme Court opinion was leaked to the public. There have been other information leaks in US Supreme Court history, including the leak of the Roe v. Wade outcome in 1972, but never before has a Court Opinion draft been leaked [2]. This leak has caused the Supreme Court to fear that the public will lose trust in the court, forcing them to think of new measures to prevent future leaks.
The Dobbs v. Jackson leak was initially released by Politico, a German political newspaper, and was announced as legitimate by Chief Justice John Roberts [2]. It is unknown who leaked the information to Politico, but there have been many theories on the topic. It is possible that the document was leaked by a court clerk or a court justice, the individual could have been left-leaning or right-leaning politically. Without knowing who this individual is it is difficult to discern what their intention for leaking the draft could be. However, no matter the identity of the individual they could be facing extreme consequences for their role in the leak, ranging from losing their job to legal consequences including impeachment [2].
The matter of determining why this document was leaked depends greatly upon who the individual that leaked it was, particularly what their political stance was. If the individual was conservative-leaning, there are a number of possibilities for why they may have leaked the document. The most obvious and logical being that the individual was attempting to prevent the five Justices voting to overturn Roe v. Wade from changing their stance. Another possibility is that a conservative Court Justice may have been attempting to lessen the public outrage from such a monumental decision by preparing the public for the coming decision [2]. The former is more likely, but it is impossible to be certain as the individual may have had other unknown intentions.
If the individual who leaked the document was politically left-leaning, their intentions for doing so would likely be entirely different. Perhaps their goal was to create public outrage and form some distrust of the US Supreme Court. It may even have been a strategy to buy time for those who opposed the overturning of Roe v. Wade. For example, this could have potentially given the opposing side time to protest for federal legislation that would have combated the effects of the ruling [2]. Many favor the theory of a left-leaning individual having been the leaker because it makes the most sense that someone who opposed the ruling would threaten it in such a way.
There were many opinions associated with the leaked draft of the Dobbs v. Jackson opinion. Similarly to the opinions on the ruling itself, these opinions were very polarized based on political viewpoints. For example, Vice President Kamala Harris, a Democratic politician, stated “How dare they tell a woman what she can and cannot do with her body?” [2] Whereas Former Vice President Mike Pence, a Republican politician, responded to this statement with “Since 1973, generations of mothers enduring heartbreak and loss that can last a lifetime.” [2] Most left-leaning individuals were commending the leaker some even going as far as to nominate them a “hero.” [2] In opposition, right-leaning individuals tended to agree with the supreme court that the leak was a huge breach of trust.
Memory played a key role in the Dobbs v. Jackson case, the leak, and the opinions associated with each. The case shows the way in which memory can be selective. For example, the Supreme Court Justices and those opposed to the leak declared the leak as unprecedented. However, from this point of view, these individuals are ignoring the fact that there have been other supreme court leaks and are narrowly defining unprecedented. [3]Memory is also a large cause for fear by many who opposed the Dobbs v. Jackson decision. Those opposed fear this overturning because of a memory before Roe v. Wade of the time when abortion was not protected by federal law. This period made illegal abortions more prevalent and the consequences were much greater for women. Opposers also fear that the overturning of Roe v. Wade will lead to other cases being overturned. In particular, laws that are protecting interracial and gay marriage. These laws are protected by similar statutes as those that protected Roe v. Wade. [3] There is a fear that in remembrance of this, the Supreme Court will be forced to overturn these laws as well.
Liam Curl
[1] Marcus, Nancy C. “Yes, Alito, There Is a Right to Privacy: Why the Leaked Dobbs Opinion Is Doctrinally Unsound.” ConLawNOW, vol. 13, no. 1, 2021-2022, pp. 101-114. HeinOnline, https://heinonline-org.libproxy.lib.unc.edu/HOL/P?h=hein.journals/akjopal13&i=101.
[2] Marzen, Chad G., and Michael Conklin. “Information Leaking and the United States Supreme Court.” Available at SSRN 4132816 (2022).[3] Winderman, Emily, and Atilla Hallsby. “The Dobbs Leak and Reproductive Justice.” Quarterly Journal of Speech, vol. 108, no. 4, 2022, pp. 421–425., https://doi.org/10.1080/00335630.2022.2128205.
[3] Winderman, Emily, and Atilla Hallsby. “The Dobbs Leak and Reproductive Justice.” Quarterly Journal of Speech, vol. 108, no. 4, 2022, pp. 421–425., https://doi.org/10.1080/00335630.2022.2128205.
[4] Image: https://gray-wtoc-prod.cdn.arcpublishing.com/resizer/mccAkUBT7ie4jXQ_l9Kswzc3cWU=/1200×675/smart/filters:quality(85)/cloudfront-us-east-1.images.arcpublishing.com/gray/DRWX7PSI3FC5DOWBJO2KHYR3RA.jpg
The fact that the Dobbs v. Jackson case was leaked in the first place is very interesting. With the Supreme Court being the most superior and elite court in the United States, it is shocking that there could be a leak of information, let alone it being this widespread. This could have been an attempt at narrativization, writing the story that those who leaked the decision wanted to, whether in favor or opposed to what was in said decision. Furthermore, I am curious to see the way this incident will impact memory in the future. I hope that we can look at its usability as well as the way it was processual in order to deduct why certain outcomes will come from it.
The leak of these Supreme Court documents and its subsequent effects on the nationwide abortion debate certainly carries meaning in conversation about public memory. Whenever I hear about leaked documents from Washington, my instinct is to be skeptical about whatever information is supposedly divulged, as I immediately think of fake news and false information in the media. I can not help but question the legitimacy of this type of news, because in a world of so much hearsay, it is hard to know what is true or not. I would not immediately believe that this is the truth because of how easy it is to forge and fake things nowadays. As we talked about in class, the existence of so much fake news calls into question the validity of all journalism, which makes it difficult for the public to know what to believe, especially when it comes to politics. There are so many motives to take into account, so it becomes hard to trust these types of leaks because it is almost certainly targeted for some private agenda. For this reason, political debates in the media will always create skepticism, and public memory will be scattered to many different sides. The Roe vs. Wade decision, with all of its controversial baggage, is the perfect example of a divisive issue that plants a different memory and feeling in all that encounter its incendiary dispute.
I would assume something that has as high of security as the Supreme Court would not have the chance of being leaked, so like what Nina said, this creates a lot of skepticism about the legitimacy of the documents. Its interesting if you think about it in the way that it was purposefully leaked; it is the only way I think something this high profile could possibly be leaked.
When I first heard of the leak I didn’t even think of it as being a way of trapping the Supreme Court Justices in their opinions to ensure the overturning of Roe V. Wade. Regardless of theories of who leaked it and their political affiliation, I think that it is dodgy to assume that it was not intentionally leaked by the Supreme Court. With the high levels of security and confidentiality that exist there, I can see how the leak could be tactical to create more support behind the overturning of Roe V. Wade. I think that our political system is more crooked than assumed, and although that may sound conspiratorial of me to say, I think it would be foolish to assume a lack of political agenda behind the leak.
This is a somewhat interesting topic to write about. It is an event, and we still do not know who leaked the decision. I see this episode as one of those things that we remember about a time in the past. There are always those little episodes, you know? I will probably remember years from now that the decision was leaked beforehand. This is interesting because we have little reason to think that this leak actually changed the outcome of the supreme court’s decision. Whatever motivation the leaker had when they did this doesn’t effectively matter then. I think this underscores some of the randomness of memory.
What is really interesting about the Dobbs leak is that on the other “unprecedented” leaks is the original Roe v Wade decision was leaked as well, way back in 1973. Interesting that it happened twice, and the theories you gave as to why are interesting. The decision in both cases were 7-2 for Roe and 6-3 for Dobbs, pretty majority, so I don’t think the leak would have shifted the vote in either of the cases if that was the leakers intent.