People haven’t been this horrified by a publicized first draft since the original character design for the Sonic the Hedgehog movie.
In May, Politico leaked a draft Supreme Court opinion that would overturn 1973’s Roe v. Wade decision and revert abortion policy entirely back to the states. The identity of the leaker and their motive both remain publicly unknown.
Although some politicians like Senate Minority Leader Mitch McConnell (R-KY) called the leak a “lawless action,” that’s actually false. Leaking government documents is only a crime if the document is classified, which the draft opinion was not. Classified documents are almost always within the executive branch, usually related to national security, rather than the judicial branch.
With the Court’s final decision expected in late June, the possibility remains that the ultimate ruling could change between now and then.
What the bill does
The Leaker Accountability Act would explicitly ban releasing a Supreme Court draft opinion to the public, punishable by up to five years’ imprisonment. The bill would only apply prospectively, not retroactively, meaning it couldn’t be used to prosecute the recent May leaker.
Other confidential material would include:
- Internal notes on a pending case.
- Any “communication” between justices, or between a justice and another Supreme Court employee, regarding a pending case.
- Personal, non-public information about a Supreme Court justice.
- Any other information designated by the Chief Justice as confidential.
It was introduced in the House on May 31 as H.R. 7917, by Rep. Mike Johnson (R-LA4).
What supporters say
Supporters argue that because the magnitude of this leak was unprecedented, it never occurred to Congress to criminalize such a possibility before — but now it is, so they should.
“The unauthorized leak of the draft opinion… constitutes a grave breach of judicial ethics and a deliberate attack on the independence of the Supreme Court,” Rep. Johnson said in a press release. “This legislation is now, unfortunately, a necessary step to discourage future such attempts to intimidate justices during their deliberative process and restore independence to the Court, so that it can ensure the American people are afforded equal and impartial justice under the law.”
What opponents say
Opponents counter that even if one thinks the leak was bad and shouldn’t have happened, that doesn’t mean it should necessarily be criminalized.
“Despite the massive public outcry the leak has caused and the impact it could have on American politics, the incident itself is an internal matter for the Supreme Court and should be dealt with accordingly,” Eric Boehm wrote for Reason.
“So far, that seems to be the way Chief Justice John Roberts is handling it. He’s instructed the marshal of the Supreme Court to investigate the leak — seemingly contradicting earlier reports saying he would involve the FBI,” Boehm continued. “While criminal charges should be off the table, the leaker ought to face the prospect of severe professional and reputational sanctions for undermining the sanctity of the Supreme Court’s deliberations.”
Odds of passage
The bill has attracted 11 cosponsors, all Republicans. It awaits a potential vote in the House Judiciary Committee. Odds of passage are low in the Democratic-controlled chamber.
That all-Republican cosponsorship presumably implies that they believe the leaker came from the pro-choice end, but it may actually be the opposite.
“In terms of who leaked it and why, it seems much more likely to me that it comes from the right in response to an actual or threatened defection by one of the five who voted to overturn Roe,” University of Pennsylvania law professor Kermit Roosevelt told the New York Times. “Leaking this early draft makes that more costly for a defector because now people will think that they changed their vote after the leak in response to public outrage.”