Supreme Court abortion leak latest in series of institutional betrayals

Published draft opinion shocks officials in Washington, prompts speculation about leaker's motive.
Abortion activist, Supreme Court, Washington, D.C., Sept. 2, 2021

The CIA's "Family Jewels." Edward Snowden's revelations on surveillance and a FISA warrant. Former President Donald Trump's private conversations with world leaders. And now a purported draft Supreme Court opinion on abortion.

Two decades of endless and consequential leaks have left behind a trail of institutional betrayal that have rocked Washington, and sometimes the world.

Some believe the most recent leak was an effort to sabotage the Supreme Court's final opinion on what may be a landmark abortion case if the documents published Monday night by Politico are true.

"I think it's plainly an attempt by the left to try and change the outcome in this case and corrupt the process, and the court must not allow that to happen," Sen. Josh Hawley (R-Mo.) declared to Fox News' Sean Hannity.

Shocking confidential revelations to the media date to the Watergate era, when military analyst Daniel Ellsberg leaked the Pentagon Papers detailing the U.S.'s involvement in Vietnam on the front page of The New York Times in 1971.

The "Family Jewels" were slowly leaked from 1974 until their formal release in 2007. The CIA files documented a quarter-century of U.S. assassination attempts and infiltration of radical groups, among other things.

In 2013, National Security Agency contractor Edward Snowden released documents detailing the surveillance of law-abiding U.S. citizens.

Trump was plagued by leaked phone calls throughout his time in office, including a call with the Ukrainian president that led to Trump's first impeachment.

On Monday, Politico published a purported draft of the majority opinion from the Supreme Court that suggests the court voted to overturn the landmark abortion precedent Roe v. Wade. This would be the first-ever major leak from the Supreme Court.

Harvard Law professor emeritus Alan Dershowitz told Hannity on Monday night that he thinks that the opinion was leaked by someone seeking to change the case's outcome.

"I strongly oppose overruling Roe vs. Wade after 50 years, but I think it will be overruled," he said, adding that he was "less skeptical" of the opinion than host Sean Hannity.

"I have a theory, and it's only a theory," said Dershowitz. "I think this was leaked by a liberal law clerk who was trying to change the outcome of the case, either by putting pressure on some of the justices to change their mind, or by getting Congress to pack the court even before June, which is very unlikely, or to get Congress to pass a national right-to-abortion law, which would apply to all the states, and that would have to come to the Supreme Court to see whether that could be upheld under the Commerce Clause.

"But I think this is real, and ... my theory is that it was leaked by somebody who wants to change the outcome," the liberal attorney said. "Look, I've been watching Supreme Court for 55 years. And this has all the hallmarks of reality and it does not have the hallmark of a decision that's likely to be changed. Maybe Chief Justice Roberts will go with the minority, but I think they seem to have five votes at this point to overrule Roe vs. Wade."

Other commentators agreed with Hawley and Dershowitz.

"The leak of the alleged early draft opinion from the Court to Politico continues the Marxist war on the Constitution and the civil society," radio host Mark Levin wrote.

The director of the pro-court-packing group Demand Justice applauded the leak and speculated that it could be an attempt to have the SCOTUS majority change its mind.

"Is a brave clerk taking this unpredecented step of leaking a draft opinion to warn the country what's coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider?" Brian Fallon tweeted.

The opinion, if factual, would completely change abortion laws across the country.

Justice Samuel Alito, on behalf of the majority in the Mississippi abortion case, Dobbs v. Jackson Women's Health, reportedly wrote: "We hold that Roe and Casey must be overruled. The constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment."