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