Leaked Draft Opinion: This Is 'Gravest, Most Unforgivable Sin'

It seems that never before has a SCOTUS draft opinion been leaked
By Evann Gastaldo,  Newser Staff
Posted May 2, 2022 9:48 PM CDT
This Is a Massive, Massive Breach
This photo shows the U.S. Supreme Court Building, Wednesday, Jan. 25, 2012 in Washington.   (AP Photo/J. Scott Applewhite, File)

(Newser) – Politico was the media outlet that received a copy of the draft opinion revealing that the Supreme Court is set to overturn abortion rights—and in a separate piece, the news site reports that such a breach is exceedingly rare, perhaps unprecedented. Indeed, "Supreme Court historians, former law clerks, and other court watchers" cannot recall any other time a draft opinion was leaked prior to the high court making its decision final. In a "handful" of other cases, hints as to how the court would rule were leaked (one of that handful: Roe v. Wade), or there were indications that insider information had made its way out of the court and into the media or political realm.

The piece, which gives an extensive rundown of other such suspected leaks and which can be read in full here, notes that in many of those cases, Supreme Court law clerks ("the roughly three dozen attorneys who typically do one-year stints reading briefs and helping draft opinions") have been blamed. "It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin," tweets SCOTUSblog. Conservative commentator Ben Shapiro was among the many people questioning who did it: "Whoa," he tweeted. He later speculated it was likely a "perverse attempt to create public pressure against the Court," perhaps by a clerk to Democrat-appointed judge Sonia Sotomayor.

National Review writer Michael Brendan Dougherty tweets that "it’s also possible—at least thinkable—that an angry conservative clerk leaked this as 'the majority opinion that could have been'—had not Justice So-And-So Flaked Out." Republican strategist Matt Wolking was also looking for breadcrumbs, tweeting that Sotomayor has a clerk named Amit Jain who once "blasted Yale for supporting Brett Kavanaugh's nomination," and then, in 2017, was quoted in a Politico piece by the same writer who authored the bombshell on the draft opinion leak. Whoever leaked the draft, the National Review noted back in December that it would be tough for the high court to keep its decision in the Mississippi case a secret: "It will be quite impressive if it can keep a secret this time—and if it can’t, we may see a pressure campaign on the Court (or worse, violence) unprecedented in modern times," wrote Dan McLaughlin. (Read more US Supreme Court stories.)

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