Assuring the high court’s integrity

The leak of a draft opinion on an abortion case pushes the Supreme Court to affirm the sanctity of its deliberations.

The Supreme Court building is seen in Washington May 4 as security measure are enhanced on the perimeter following protests.

Outside the U.S. Supreme Court this week, passions ran high over the leak of a draft opinion that – if final – would overturn Roe v. Wade. Nationwide, those on either side of the landmark 1973 ruling quickly jumped into the bear pit of political combat over abortion law. Inside the court, however, Chief Justice John Roberts did what judges often do for themselves: He tried to calm passions with a reminder of how an independent court must operate – with cool and collegial deliberation.

As expected, he ordered an internal investigation into who released the draft ruling, which was written by Justice Samuel Alito. In the spirit of honesty, he confirmed the draft is authentic. But he also assured the public that the 3-month-old draft “does not represent a decision by the Court or the final position of any member” in a case involving a Mississippi law restricting abortion. A final ruling is expected by July.

Then the chief justice wrote that the leaker’s possible intent to “undermine the integrity of operations ... will not succeed.” That reflects quite a confidence in the quality of the court’s workforce. The nine justices, their law clerks, and the court’s permanent employees alike are “intensely loyal to the institution and dedicated to the rule of law,” he affirmed.

The leaked draft was a rare case of the veil of secrecy being ripped off the court’s internal workings. Such drafts are often passed among the justices for comment without fear of publicity or to ensure justices don’t play to “the home court crowd,” as the late Ruth Bader Ginsburg put it. This allows for compromise and self-correction. Restoring the integrity of that process has probably already started.

The justices may now also become more diligent in ensuring their discussions on cases – around a rectangular table in an oak-paneled room – are done in confidence. Their work requires free-flowing deliberations out of the public eye. That helps promote patient reflection and greater humility in weighing the law, the facts, and each other’s views rather than planting themselves in ideological corners.

“People go around the table. They discuss the question in the case,” Justice Stephen Breyer told CNN last year. “People say what they think. And they say it politely, and they say it professionally.”

The justices do bring a measure of accountability by signing the published opinions, either in the majority or in a dissent. And their questioning of lawyers in a case is recorded for public use. But in insisting on privacy during internal deliberations, they hope they can better reason and listen together. This type of conversation offers an antidote to political divisions in the United States. That may be why the chief justice was so quick to assure Americans that the integrity of the court’s operation is intact.

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