By Philip Wegmann for RealClearPolitics
Under the wing of Air Force One, President Biden delivered the news.
Yes, he told the reporters traveling with him to Alabama, the leaked opinion from the Supreme Court overturning Roe v. Wade, the one currently melting all of Washington, well, that was real. But it was just a draft, he insisted. The leak was not definitive, and the case could still go either way. It was his sincere hope, Biden added, that “there are not enough votes for it.”
Overturning Roe, at least according to the former Senate Judiciary Committee chairman who became president, would represent a “fundamental shift in American jurisprudence.” An erosion of rights to privacy, such as same-sex marriage and birth control, could follow.
And for Biden this was too far: “I’m not prepared to leave that to the whims of the public at the moment in local areas.” Later, Tennessee Sen. Marsha Blackburn rolled her eyes. “Someone,” the Senate Judiciary Republican told RealClearPolitics in an interview with RCP, “needs to hand the president a copy of the Federalist Papers.”
The Supreme Court, added Sen. Josh Hawley who also sits on the Judiciary Committee, now confronts “a true crisis.”
These are just some of the diverging opinions between liberals and conservatives as the federal right to an abortion hangs in the balance. And for once, in a city where words like “unprecedented” and “extraordinary” are regularly overused, the current moment is unrivaled: Two political machines built over the course of nearly half a century, one in favor of the right to abortion and one against, are colliding.
The resulting wreckage could redefine not just Congress this November, but perhaps the Supreme Court itself. Jen Psaki, though, stressed to reporters now aboard Air Force One that nothing would change immediately.
“Women waking up today, their daughters still have the same rights they had yesterday,” the White House press secretary said, echoing the president’s point that no decision was final. And even in states that were prepared to ban abortion altogether if Roe is struck down, the administration was already working to “expand access.”
What about codifying Roe through Congress? Biden supports the effort, but the White House doesn’t have the requisite numbers on Capitol Hill. “It’s important to note there has been a vote on this,” Psaki said. “It failed.” Not only did it fail, she continued, “it didn’t have even 50 votes, which means even if the filibuster were overturned, there would not have been enough votes to get this passed.”
Reporters asked the president what overturning Roe might mean for the midterms. On the airport tarmac, Biden said he hadn’t thought that through yet. Psaki had. To codify abortion rights at the federal level, she told reporters, “We will need more pro-choice senators and pro-choice majorities in the House.” Vice President Harris had thought about it as well. She said in a statement that now “is the time to fight for women and for our country with everything we have.”
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The press secretary added an interesting caveat: Abortion, she said, is “not a wedge issue.” She apparently meant that it doesn’t break neatly into camps of equal benefit to each side. According to polling by Gallup, she may have a point: Even though the country is split 49% to 47% when asked if they are “pro-choice” or “pro-life” respectively, 58% percent of Americans say they oppose overturning Roe.
Hence the reason Psaki believes that Democrats have the upper hand on this front in the culture wars: “The majority of the public supports a woman’s fundamental rights.” Again, Blackburn objected.
The left laughed at the only female Republican on the Senate Judiciary Committee when she asked Judge Ketanji Brown Jackson about biology last month. “How interesting that two weeks ago they refused to define a woman,” Blackburn said of those defending Jackson’s now viral non-answer, “and now today the only thing they want to talk about is protecting a woman’s right to choose.”
The senator reiterated that striking down Roe would not outlaw abortion. If the court determines that Roe was wrongly decided, she said, the issue would be returned to the individual states. She said this was “an appropriate step.”
Blackburn accused her critics of acting out to influence the country and the court. “If they can’t get their way legislatively, then they try to go to the court,” she said, before complaining that the media was partisan in their coverage, biased in their personal beliefs, and that they deserve cheerleading uniforms with “Democrat” stitched to the back.
Blackburn wants the leaker found and “punished to the full extent of the law.” In some circles of former clerks, lawyers are floating the idea of an obstruction of justice charge.
Almost to a person, from Minority Leader Mitch McConnell on down, Republicans have condemned the unprecedented leak. Hawley clerked for Chief Justice Roberts and still remembers the lecture he received on Day One of his clerkship. Long story short, he told RCP, “You are ethically bound never to disclose the details about an opinion or a case.”
Each of the clerks, usually a number between 27 and 36 per term, knows the rules. It is why the high court is considered leak-proof. It is also why when Hawley heard the news, he was left “in shock and disbelief.”
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The Supreme Court operates in secrecy. One relatively recent and former clerk told RCP that discretion is necessary for justices to debate in good faith, often trading incomplete drafts of opinions between themselves and across the ideological spectrum. Take that away, the former clerk added, allow the court to leak like, say Congress, and “it is very dangerous both for how it functions but also for the justices’ individual personal safety.”
Hawley agreed on the immediate practical matter. He called on Congress to provide the justices with additional security if needed, and then he declared that his old boss was weathering “unprecedented pressure tactics,” an attack “on the integrity of the court.” Roberts condemned the leak in a statement, calling it “a betrayal of the confidences of the Court.”
He directed the Marshal of the Court, security police answerable strictly to the judiciary, to immediately launch an investigation into the source of the leak. Hawley said his legacy hangs in the balance.
“This is what he will be remembered for. Can he now in this moment of crisis, for this court and in the face of an attempt to interfere directly with the decision making of the court, can he put a stop to it,” Hawley wondered. “We will see.” And then Hawley offered some advice: “The court ought to issue this decision ASAP. I see no reason to wait.”
He was confident that Biden’s hopes would be dashed. That is, the draft would become “the final decision of the court.” Roe would be overturned, Hawley said, in large part because “the court cannot reverse course now.” Meanwhile, the leaker was at large. “It may not be a clerk who did it,” he mused before noting from personal experience that “there are just a very few people,” a small circle, he said, “who would know the vote tally.”
What about someone in black robes? Hawley couldn’t fathom. “It had better not be a justice,” he told RCP. “I mean,” he continued at a loss for words, “that is all I can say.”
“Who else knew about this before it was given to Politico? I will say it’s certainly interesting to me that Democrat senators were quick to jump on this and seem to have a coordinated response,” he added, giving voice to lingering conservative suspicions. Here, the right can point to examples. For instance, they note that this isn’t the first time, even this year, that the Supreme Court has been rocked by leaks.
News that Justice Stephen Breyer would retire may have been leaked early by the White House chief of staff, a development the justice reportedly did not appreciate. Another leak, reported by NPR and dismissed by the justices themselves, told of how Justice Neil Gorsuch allegedly wouldn’t wear a mask on the bench, to the chagrin of Justice Sonia Sotomayor. And now the leaked Roe opinion.
Like other Republicans, Sen. Mike Lee was encouraged by the initial draft opinion, though he condemned the leak. If anything, he told RCP, the draft reflects “judicial humility,” an acknowledgment that “there is nothing in the Constitution that renders abortion a matter to be decided at the federal level.”
“The American people ought to feel some sense of comfort knowing that this court was, and is, just trying to right historical wrongs,” he said before adding that the initial Roe decision, the one left and right have fought over for nearly half a century, was “almost impossible to defend on the merits of its own reasoning.” Jurisprudence aside, the leak was still worrisome.
Lee could only recall “a small handful of occasions in my lifetime when you’ve even had anything approaching rumors of the outcome of a decision emerge from the court. The court is very good at maintaining the confidentiality of its proceedings.”
And the Utah Republican should know. He clerked for Alito, who authored the leaked decision, and remembers the protocols more than a decade later.
There were two computer systems clerks would use, Lee recalled in an interview with RCP. One for research, another for communications between chambers. When a justice or a clerk wanted to print something, they followed strict rules governed by a single mandate: “The hard copy is not to go home with you. In fact, it shouldn’t even leave the building.”
The court takes secrecy so seriously, they have rules for garbage: “You can’t just throw them in the trash,” Lee said of scratch materials and drafts that are never meant to see the light of day. “You’re supposed to put it in a burn bag.” The contents of said burn bags aren’t just thrown in a fire. First, they are shredded. Twice. Don’t think “long strands of ribbon,” Lee says. Think “finely shredded confetti.” Then, and only then, fire.
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“It is put into an incinerator, this confetti,” Lee recalls, “and it’s burned.” Afterward, the ashes are “injected with a small amount of water and turned into a slurry like paste before it ever leaves the custody of the Supreme Court.” And that is why the senator is confused.
“The fact that this leaked was just baffling to me,” he said. “I never imagined something like this happening – I’m sure the court can figure it out.”
White House aides told RCP that they were in the dark about the leak. They only learned about the Roe draft from Politico, “from the story publishing.” But if the administration is angry about the break with decorum, it didn’t show. Asked whether the president agrees with Roberts that the leak was “egregious” and whether he believes the individual should be prosecuted, Psaki referred reporters to the Department of Justice.
Syndicated with permission from Real Clear Wire.