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Ken Starr: Leak will have 'enduring effect' on SCOTUS, but Alito's opinion is 'very impressive'

"Obviously, it's a firing offense. It should be more than that, it's so egregious, it's so outrageous" – Ken Starr

Published: May 3, 2022 12:37pm

Updated: May 3, 2022 2:19pm

While the leak of the Supreme Court draft opinion for the Mississippi abortion law case is "egregious" and will have an "enduring effect" on the court, the decision written by Justice Samuel Alito is "very impressive," former U.S. Solicitor General Ken Starr said Tuesday.

Politico published a leaked draft of the majority draft opinion in the Dobbs v. Jackson Women's Health case on Monday, which states that decisions on abortion cases Roe v. Wade and Planned Parenthood v. Casey "must be overruled."

Chief Justice John Roberts on Tuesday confirmed the authenticity of the draft and called for the marshal of the court to investigate the leak.

Starr, who was a law clerk for former Chief Justice Warren Burger, told the John Solomon Reports podcast in an interview to be aired Tuesday afternoon that the leak is "outrageous" and "unprecedented."

"Obviously, it's a firing offense," he also said. "It should be more than that. It's so egregious. It's so outrageous. And everyone is saying that – anyone who's thoughtful and understands the court and its process. And it's truly unprecedented."

Starr noted that when he was a law clerk, there was a "very sacred trust of confidentiality" in the Supreme Court that was respected until the last generation with tell-all books. But while the leaking of confidential information in such books isn't unprecedented, "the leak of an actual opinion itself, that is still being considered by the court" is.

He also said the chief justice is having the marshal of the court investigate the leak, rather than the FBI, which means "there's no suggestion that this is somehow a criminal offense, but it doesn't take away from the seriousness of this profound breach of the confidential duty."

The leak will have "an enduring effect" on the court, Starr continued. While the source of the leak is still unknown, assuming it came from a law clerk, he said, "it will, of course, weigh very heavily, I think, in terms of how the justices assess the character of their law clerks."

Regarding Alito's leaked opinion in Dobbs v. Jackson Women's Health, Starr said, "It's very impressive. It's a very admirable, Justice Alito, comprehensive opinion. He takes on every kind of argument. He does not ignore anything. He sweeps nothing under the rug.

"And what he concludes is that Roe versus Wade, and then Planned Parenthood versus Casey, were egregiously wrong. But he doesn't just say that, he explains it in very well reasoned terms and then he comes to grips with the issue of, 'should we stay the course?' so-called stare decisis."

Starr explained that Alito details how "the court has overruled its constitutional decisions" in the past, regardless of the amount of time that had passed since they were made.

"So longevity doesn't count, or freshness doesn't count," he said. "What counts is, is the decision wrong? And his dissection of Roe versus Wade is just very comprehensive. And I think, to a fair-minded person, should be viewed as, 'Yes, it's very fair.' You might disagree with it, but it's fair, it's well reasoned, and very powerful."

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