Let’s be clear. The calculated illegal leak of a draft decision by the U.S. Supreme Court is akin to leaking the launch codes for America’s nuclear arsenal. It puts American democracy and institutions at grave risk.
As challenging as it may be given the passions of both sides, we need to put aside whether we agree or disagree that the draft Roe v. Wade decision is a correct interpretation of the Constitution and appreciate the far larger issue: that the leak is a cynical effort to corrupt the confidential deliberative process of our judiciary. It not only improperly sought to create a national firestorm prior to the court’s issuing a final decision, but also to destroy the necessary confidentiality, internal trust and mutual respect needed among the justices and staff.
Unlike the other two branches of government — Congress and the executive branch — which have elected office holders who are answerable to their constituents every two, four of six years — the federal judicial branch has unelected judges and justices who are appointed for life. The reason our founders provided for this was to attempt to immunize them from the outside forces and partisan influences that are involved in getting re-elected or re-appointed.
The founders of this great republic enacted a Constitution that provided for an executive branch and a legislative branch, both of which are answerable to the citizens — and thus also subject to being lobbied and picketed by them. Judges, meanwhile, are obligated to decide matters impartially, without bias, prejudice or partisan influences, based solely on facts properly admitted into evidence in court and in accordance with applicable law. It is illegal for anyone to attempt to intimidate or influence judges outside court proceedings to try to get them to achieve your desired outcome. Picketing their homes or otherwise trying to intimidate judges or their families is a serious crime, and a threat to the premise of the judicial branch.
Chief Justice John Roberts’s statement after the leak only hinted at his level of anger when he described it a “betrayal of the confidences of the Court.” And words alone will not heal the historic damage done to the integrity of the court or sufficiently punish the leaker(s). In its wake, Roberts instructed the marshal of the court to conduct an internal investigation into source of the leak to Politico for the purpose of punishing those involved.
Ronald J. Rosenberg has been an attorney for 42 years, concentrating in commercial litigation and transactions, and real estate, municipal, zoning and land use law. He founded the Garden City law firm Rosenberg Calica & Birney in 1999.