Professional Ethics Breach Alert! The Draft SCOTUS Abortion Opinion Leak

The issue right now is simple. Someone with access to Justice Alito’s draft majority opinion in THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS u. JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL. leaked it to Politico. This is the worst breach of professional ethics in the history of the Court. It is the worst breach of professional ethics in the history of the federal court system. If a lawyer, such as a law clerk, was responsible, he or she should be, and probably will be, disbarred.

The draft is here.

I haven’t read the draft: the thing is 67 pages long, and I just got it. The conclusion, however, is clear:

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not pro­hibit the citizens of each State from regulating or prohibit­ing abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

“Roe” of course is Roe v. Wade, 410 U.S. 113, the 1973 Supreme Court decision that bootstrapped a new “right” to abortion from the right to privacy detailed in an earlier decision ruling that the government couldn’t ban birth control. “Casey” is Planned Parenthood of Southeastern Pennsylvania v. Casey, a mess of a 1992 post-Roe abortion challenge in which a fractured Court held that state abortion regulations would only pass constitutional muster if they did not create an “undue burden” on the right to abortion, which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The case also affirmed that Roe should be maintained under the principle of stare decisus, which is the principle that long-standing SCOTUS decisions should rarely be overruled, and then only in extraordinary circumstances.

Roe was a bad decision, badly reasoned, and should never have been issued. Overturning it now, if that is what is this signifies, still raises ethical issues. Moreover, the draft is no guarantee that the case will be overturned, though it certainly suggests that result. It is dated February, and this is May. It may not even be the final draft.

Right now, there is only one ethics verdict to be made: whoever leaked the opinion violated the Court’s trust, and was apparently trying to give abortion supporters a head start in their freakout, or even attempting to sabotage the opinion itself by forcing the justices to change their minds in response to political forces and public opinion. Whatever the motive, the act was despicable, and ethically indefensible.

37 thoughts on “Professional Ethics Breach Alert! The Draft SCOTUS Abortion Opinion Leak

  1. First and foremost, the leaker(s) should be shown the door, and barred from practicing law.

    As much as I would like for the Court to rule, once and for all, that the only rights the Constitution protects are those enumerated therein, it is not even be necessary to overrule Roe to reverse the Fifth Circuit.

    By its own terms, the law in question only prohibits abortions after fifteen weeks, also known as the first trimester.

    • Except there’s an amendment that explicitly states that the people retain rights not enumerated in the Constitution.

      • Indeed. Not relevant to abortion, however, except in the fertile imaginations of the Roe majority. The right to privacy was a good example of an unenumerated right; the right to kill a nascent human being was not, which is why they used “privacy” as the false justification for a “right” to abortion.

        • I agree that using the “right to privacy” sidestepped the core issue. I suppose that humans, lacking the skills to hash the issue out like civilized beings, had to sidestep it, but they should have developed the ability in the intervening decades to figure it out.

          The fundamental question on which this issue is based is as follows: At what point in process by which a blob of matter develops into a sapient human being (part of which process takes place within the body of another human being) do we ascribe to that entity the ethical right to exist?

          I’m doubtful that the Constitution has anything relevant to say on this point. This is a philosophical question, because while laws say not to kill people, philosophy is how we determine what a person is.

          We also want to be mindful of the ethical consequences of our decision, so we can navigate the precedents, incentives, and competing rights that we may run into. It may well be that we end up shifting the legal criteria for personhood earlier or later in the development of a human organism than we would in a vacuum, as a convention to avoid creating bad incentives for society. Laws sometimes have to compromise with pure ethics when pure ethics is impractical to apply or enforce.

          Then again, if we could identify all the reasons why a person would want to have an abortion and make it easier to accomplish those goals via other means, that would lower the stakes that are leading people to be so fanatical about this issue.

          • It’s not that hard guys. If you don’t want to have a baby – consider the conduct that leads to having a baby as part of your decision making process. But once the baby is an unique organism, you’ve obligated yourself by the decisions you made early on to care of the unique *and innocent* organism you invited into this world.

            • Michael West wrote, “It’s not that hard guys. If you don’t want to have a baby – consider the conduct that leads to having a baby as part of your decision making process.”

              On a similar note…

              Responsibilities of sex:
              1. The male has the legal, moral and human responsibility to not force the act of sex upon a female.

              2. The male has a responsibility to use a condom unless there is consent from the female to engage in unprotected sex.

              3. The female has the responsibility to tell the male to use a condom unless she is willing to accept the risks associated with unprotected sex.

              4. Both the male and the female engaging in sex must understand that condoms (or any contraceptive) are not 100% effective at preventing pregnancy and the ultimate responsibility for a possible pregnancy lies on both the male and the female.

              5. If a female chooses to be sexually active then that female has the responsibility to use birth control if she doesn’t want to get pregnant and the ultimate responsibility for a possible pregnancy lies on both the male and the female.

              6. If a female is forced into sexual intercourse, whether it’s unprotected or not, she has the moral and human responsibility to get immediate medical treatment to prevent a possible pregnancy if she doesn’t want to become a mother.

              7. If a female is forced into sexual intercourse, whether it’s unprotected or not, she has the moral and civic responsibility to report the incident to police to help prevent the male individual from forcing himself upon another female.

              8. If a female chooses to have sex and doesn’t want to get pregnant, even if it was protected, she has the moral and human responsibility to get immediate medical treatment to prevent a possible pregnancy if she doesn’t want to become a mother.

              9. If a male and a female do not want the responsibility of breeding a human child then it is their responsibility to do the things it takes to not become a parent.

              10. ABORTION IS NOT A FORM OF BIRTH CONTROL, it’s exterminating a completely helpless human being. It’s the responsibility of those engaging in sex to do the responsible things required of them to prevent “unwanted” pregnancies and therefore prevent the perceived need for abortions.

              This really isn’t rocket science, it’s just common sense; but unfortunately, common sense has been buried in the quaint anecdotes of history.

              Legal or not, abortion is immoral.

              • All of these principles are rational and wise. However, where sex and arousal are concerned, wisdom and rationality frequently get thrown out the window. BTW, it’s not usually the forcing a woman into sex you need to worry about, it’s the pressuring. Most guys know that force is criminal, BUT, a little pressure greatly increases their chances of getting what they want. So they threaten to walk away from the woman or they act hurt, like if she doesn’t give them what they want she doesn’t love them, or they just wheedle and cajole until she “gives it up.” Then there’s the question of a lot of faiths muddying the waters with statements like St. John Paul II’s “Humanae Vitae,” in which he wrote that “every human act must remain open to the transmission of life.” In other words, if the couple get careless, or the woman is forced, or whatever, abortion isn’t an option. I think part of the thinking behind it is to generally reduce sex, because sex was considered “dirty” by the church.

          • Personally, I would argue that the laws against murder are more than “philosophical”, but fundamental to a healthy, functioning society. Nor can abortion be exempted from this. That “blob of cells” has the destiny of a human being and is a unique creature at its moment of conception.
            As for the question posed, the purpose of the leaker was immediately apparent and unprecedented in the Court’s history. The sad thing is that no actual laws appear to have been broken. When the transgressor is revealed, he will undoubtedly be expelled from his service and likely disbarred. But why should he care? With this stunt, he’s probably made his fortune through the notoriety. Every liberal talk show will want him. In fact, he may wind up with his own show! I wonder which publisher will win the rights to his book?

  2. I just learned of this on Fox News, so it must be false.

    But, as I have known since approximately 2000, the Supreme Court in The State That Mondale Won decided (in 1995?) that the state protected abortion rights more than the feds did.

    As much as I dislike abortion, I respect self-government. They legalized same-sex marriage by amendment before the Supremes butted in.

    I disagree with same-sex marriage; I respect the State amendment to legalize it; I was pissed off that the Supreme Court decided to butt in. (See the analogy to Roe?).

    I do not believe I have ever seen a leak such as this. If this is real, it should be cut off. Any leak of judicial deliberations is unethical. I would expect that prohibition would apply to deliberations of a justice consulting with another justice (I.e. Kagan’s clerk can’t say that it was not unethical because no duty was owed to Alito)(all names are pretend).

    This story bugs me, because nothing but the actual decision matters.

    The Courts are akin to the Delphic Oracle. Deliberations don’t matter; only the decision matters.

    The Legislature and Executive are different. They are political. Leaks are dumb, but they are political.

    Courts should not be and should harshly enforce that reality.


  3. Firing the guilty and disbarring them will have no effect. These society destroying miscreants act on the assurance of networks of progressive safety cushions.

    The leaker- if outed- will be guaranteed an income for life.

    No- corruption of the constitution and undermining the republic have to have graver consequences than disbarment.

  4. Unfortunately the bad actor, the leaker, will probably get a book deal and a gig on a left-leaning news outlet, s/he will be rewarded for his/her unethical behavior.

  5. Why is the draft “no guarantee that the case will be overturned”?

    If it’s the majority opinion, doesn’t that mean the judges have already voted? Or are they able to change their minds within a certain time frame?

  6. 1.

    2. If Alito leaked it’s not an offence worthy of impeachment.

    3. It is unethical, self evidently, and a sign of the loss of reputation of the SCOTUS. It is now seen as thoroughly politicised. Whoever did this saw nothing wrong with it. This should be knocked on top of the head, otherwise the next Congress will pack the court so decisions are 10-3. There is a good argument for 13 justices on the SCOTUS, after all.

    4. All those who at their confirmation hearing testified that Roe vs Wade was settled law so they would not overturn it should resign if part of the majority. They won’t, but they should. They are unethical.

    • Nobody said they wouldn’t overturn Roe though. They said they supported stare decisus, which doesn’t preclude deciding that a major Constitutional decision was wrongly decided and had to go despite stare decisus.

      From the DRAFT:

      “We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right.’…On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”

      Personally, I didn’t think they’d have the guts to do it. Assuming it stands, the reversal was the right thing to do, but awfully late.

      • Nobody said they wouldn’t overturn Roe though

        Did they mendaciously imply it?

        Did you, Jack Marshall, critique those who were against the confirmation of the Bush and Trump appointees because the confirmees might overturn Roe vs Wade ? Did you accuse the Democrats of being hysterical?

        stare decisis is not some sacred cow. Decisions such as Dredd Scott stood until constitutional amendment. Plessey vs Ferguson took 58 yrs before overturn by Brown vs Board of Education…

        The current court have abandoned stare decisis many times but only when it collided with their political ideology.

        “Chief Justice Roberts has been willing to overturn settled law when he thinks the original opinion was not well argued. He did so in Citizens United, a 2010 decision overturning two major campaign finance decisions, Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC.

        In 2020, Justices Neil Gorsuch and Brett Kavanaugh in Ramos v. Louisiana went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito’s discussion in 2018 in Janus v. American Federation of State, County, and Municipal Employees Council Number 31. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.”

        • Sure did. And they were. You don’t base a confirmation vote on a hypothetical decision on a case that hasn’t come up yet. All SCOTUS nominees since Bork have stonewalled, and will continue to as long as confirmation is based on partisan politics and not qualifications. However, it is 100% correct for a nominee to refuse to answer regarding how they would rule on a future case.

          I was wrong. I was certain Roe was safe because it was so old.But I thought it was terrible decision in 1973, and I wasn’t a lawyer then. It’s still a terrible decision. If and when it is overturned, I’ll be pleasantly surprised.

          • I had a conversation with a couple of individuals some months back concerning abortion – both of whom I believe leaned more pro-choice – and I said then I didn’t think Roe would be overturned (though I added I would be happy if it was, using some of the legal reasons I’ve learned from your writing). It was surprisingly even-keeled and non-confrontational given the subject matter.

            The fact that I’m already reading about how SCOTUS is mandating “forced pregnancy for 14-year-old girls” from people who should understand how this process works is a great sign that either they a) really don’t know how this process works and are therefore disqualified from serious discussion, or b) know how the process works and are purposely lying about it, thereby disqualifying themselves from serious discussion.

  7. Tempting as it is to play the “Who leaked?’ game, I decided not to do it. The baseline is whoever leaked is scum, and if it was a clerk, the Justice who supervised him or her has a lot of explaining to do. Ultimately, this falls on Roberts, and is a commentary on his leadership. And he knows it.

  8. I would buckle up and get ready for a bumpy ride today. Supposedly huge crowds are already gathering outside the Supreme Court, and it would not surprise me if justices were getting death threats and worse. This was done for one of two reasons. The first reason would be the hope that this early exposure and the huge negative reaction would get one or more of the justices to change his/her mind and vote to uphold, just like justice Roberts changed his mind at the last minute on Obamacare. Possible, but not as likely, the conservative block has been waiting far too long for this moment, and they are not about to let a leak derail it. Time and again there’s been the possibility of overturning this decision, but it always felt one vote short, and every time it looked like there might be the possibility to change the balance of the court, but White House would flip. The more likely reason is that someone who leans left or has a girlfriend/wife/SO who leans left saw a chance to do a reset with regard to the upcoming election. Suddenly this is going to overshadow everything as far as the left is concerned. I’ve said it before, and I’ll say it again, if all other rights were to be swept away and the left could retain only one guaranteed right, it would be the right to an abortion. That said, the effect would be the same, just later, if the person did nothing and simply waited for the decision to come out.

    Either way, this is a despicable ethical breach, however, I am not terribly surprised. The last few years have made it very clear that the left has no ethics and has no standards except for double standards. Like George W. Bush once said (correctly) of the Taliban, they have abandoned every principal and value except the will to power. Tyranny is tyranny, whether preached by a balding guy with a sinister pointy beard, a scrawny guy dressed in khaki with that mustache, or a botoxed octogenarian in an outfit that most women could buy 10 of theirs for the same price, who adjusts her sunglasses just so, as she looks down her perma-sneering nose at the little people. The only difference between the modern democratic party and the Nazis and the Bolsheviks is that their hatred is directed at different groups.

  9. On a separate but related note…

    1. Justice Stephen Breyer announced on January 27 that he was going to retire from regular active judicial service at the end if the current term.

    2. This draft was circulated on February 10th.

    3. There is only 15 days between those two dates.

    If the draft is authentic, inquisitive minds want to know if the announced retirement and the draft are related and if the leak was related.

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