The story today, as it was when Dobbs first leaked, is that this Supreme Court is out of control.
It still doesn’t matter who leaked the Supreme Court’s opinion overturning Roe v. Wade, but the Court’s inconclusive investigation into the leak is a stark reminder of how desperately it needs to be reformed.
The leak was a distraction meant to shift focus away from where is should have been: the disastrous harm that overturning Roe for the women, trans and nonbinary people who depend on abortion access to obtain the reproductive healthcare they deserve. Dobbs was just one of many Supreme Court decisions that has been chipping away at the civil rights of all people.
The Court’s investigation, which did not identify the source of the leak, proves just how unseriously it considered this matter. According to the investigation report, the marshal’s investigation included “126 formal interviews of 97 employees,” all of whom denied leaking it. Though it was unclear, the Court has since clarified that the marshal did speak with the justices, but did not require them to sign sworn affidavits.
This huge gap in the investigation speaks to how invincible the justices see themselves. They wanted to know who the leak was—so long as they weren’t treated as suspects themselves. They are used to their power being truly supreme—with no accountability to anyone—and if the investigation pointed the finger at one of them, it would severely undermine that perception.
As a reminder, there is no code of ethics that is binding on the Supreme Court justices like there is for all other federal judges. There is no oversight when justices (or their spouses) have a clear conflict of interest in a case and don’t recuse themselves. There is no oversight when justices pal around with parties to a case or political organizations that take positions in cases. There is no oversight when justices accept money from others, including those who might appear before the Court.
This fact of extreme unaccountability is something Congress could change, and there have already been several bills circulating that would create some overdue checks on the Court. It’s thus no surprise that the investigation seems to have carefully avoided the possibility of fueling such efforts. The Court cares more about its power than it does this leak—and so should we.
There is no code of ethics that is binding on the Supreme Court justices like there is for all other federal judges. …This fact of extreme unaccountability is something Congress could change.
Even if we don’t know who leaked the opinion, we know far more since the leak about how this politicized Court is weakening our democracy.
We know the leak was not “just a draft.” The final opinion in Dobbs did not meaningfully stray from what was in the leaked version. The conservative justices were determined to overturn Roe and not even the weeks of public scrutiny that followed the leak was going to change that.
We know that the leak was not the main story of Dobbs. The investigation has ended with a shrug, whereas it has been a devastating year for reproductive health. We continue to hear dreadful stories of pregnant people being denied the care they deserve, such as the women who’ve suffered through agonizingly long, painful and life-threatening miscarriages because their doctors were afraid to break abortion ban laws in treating them.
We also know there needs to be more accountability for the justices, not less. Some of the distractive discourse last summer focused on the protests targeting Supreme Court justices individually, including at their homes. The Court has repeatedly relaxed protections for abortion clinic protests, including even allowing for protests outside the homes of abortion clinic staff. The justices of course deserve to be protected from threats and violence, and no one is suggesting otherwise. But the same standard should apply to protests of the justices that they have allowed in regard to abortion.
It’s as clear as ever that Dobbs was a political decision, and the anti-choice movement sees it as a political victory. This weekend’s March for Life, held on what would have been the 50th anniversary of Roe, changed its route for the first time. Normally, opponents of choice concluded their march with a rally at the Supreme Court—but that victory has been won, so they’ve moved on to targeting the Capitol to lobby for even more restrictive abortion laws.
The story today, as it was when Dobbs first leaked, is that this Supreme Court is out of control. This investigation is only the latest evidence that the justices do not intend to check themselves.
Supreme Court reform is essential to protect against the next decision that does such harm to our rights, whether it’s leaked or not.
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