SCOTUS leak shows our government institutions are broken

OPINION:

One of my students took a break from studying for final exams to ask for my thoughts about the recent leak of the draft U.S. Supreme Court opinion overruling the Roe v. Wade and Planned Parenthood v. Casey abortion precedents. I told him that the leak was inappropriate and that our government institutions are broken.

Abortion divides the left and right like no other issue in constitutional law. It also divides me. As a Catholic, I am required to oppose abortion because the catechism of the Catholic Church decrees that “human life must be respected and protected absolutely from the moment of conception.” As a libertarian, I am supposed to support a woman’s liberty right to make her own choice about whether to carry her pregnancy to term.

Indeed, in my first book, “To Secure These Rights: The Declaration of Independence and Constitutional Interpretation,” I concluded that abortion was the one constitutional law question that my proposed “liberal originalist” theory of constitutional interpretation could not answer, at least until we know when “life” begins.

But, as I mentioned to my student, there can be no doubt that the recent leak of the court’s draft opinion overruling Roe and Casey shows that our government institutions are broken. Most of us learned long ago that, for example, too much of our mail gets lost by the Post Office, too many wealthy Americans avoid paying their fair share of taxes to the IRS, and the EEOC has never met an employment discrimination complaint it couldn’t figure out how to dismiss without conducting an investigation.

However, the Supreme Court is supposed to be a court tasked with providing “equal justice under law,” to quote the phrase engraved on the West Pediment, above the front entrance of the Supreme Court building in Washington. It is not. Instead, as the leak makes clear, the nation’s highest “court” has become a dysfunctional hornet’s nest of partisan politics.

The right blames the left for the leak. Sen. Ted Cruz, Texas Republican, for one, insists that “some left-wing law clerk angry at the direction the court is going decided to betray his or her obligation, [and] the trust that clerk owed to his or her justice and the court.” Mr. Cruz insisted, “Whoever did this leak should be prosecuted and should go to jail for a very long time. This has shaken the independence and the ability of the judiciary to function.”

The left, in contrast, blames the right for the leak. According to journalist and law professor Kate Shaw, “whoever leaked the draft may be trying to ‘lock’ in a five-justice majority and the publicity from the leak will deter anyone from ‘jumping ship.’” Shaw added, “The publicity will deter them from doing so because they will be worried about sending a message that they were somehow cowed into changing their votes by the public blowback and/or the public encouragement.”

Even before the leak, the Supreme Court’s public approval rating had fallen to an all-time low of 40%. After the leak, how are the American people ever supposed to trust the court, the justices and the justices’ staffs again, especially when House Speaker Nancy Pelosi, California Democrat, and Senate Majority Leader Chuck Schumer, New York Democrat, released a joint statement accusing “several” of the conservative justices of “lying” to the Senate during their confirmation processes about their commitment to the high court’s abortion precedents?

Chief Justice John Roberts, who seems to care more about the court’s reputation than about anything else, issued a statement of his own confirming the authenticity of the leaked draft opinion, while simultaneously insisting, “To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way.”

I wish I could believe him.

• Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include “A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787” (Oxford University Press).