Supreme Court draft opinion that would overturn Roe v. Wade a breach of confidentiality, experts say

The U.S. Supreme Court draft opinion that would overturn the constitutional right to abortion is a breach of confidentiality, and has heightened the stakes in an already politically-charged case, experts say.

Politico published a draft majority opinion on Monday night that it had obtained striking down the 1973 decision Roe v. Wade, which guaranteed the right to abortion nationwide. It was a sign that the court's 6 -- 3 conservative majority was ready to flex its muscle.

While the substance of the draft sparked praise from anti-abortion conservatives and Republicans and condemned abortion rights advocates and Democrats, many court watchers blasted the leak itself as a rare if not unprecedented occurrence.

They predicted chaos inside the court and unpredictable consequences, a longstanding tradition of confidentiality and trust surrounding its deliberations helps lend it its independence from the political branches of government.

The Supreme Court keeps its internal deliberations private, unlike the White House and Congress, where leaks are a regular feature of life and political operatives trying to advance their agendas.

On its Twitter account, SCOTUSblog wrote: "It is impossible to overstate the magnitude of the earthquake this will cause inside the court, in terms of the destruction of trust among justices and staff. Leaking a draft opinion is a violation of the established norms. Dan Epps, a professor of law at Washington University in St. Louis, said it was just that it wouldn't happen. He said the culprit would be someone who is upset about what the court is doing.

Ilya Shapiro, a lecturer at the Georgetown University Law Center, said that the leak is inexcusable and threatens the court's functioning. Some commentators said that the person who leaked the draft is probably trying to change the justices minds or to get progressive voters to the polls for the Nov. 8 congressional midterm elections, but others disagreed, saying that the leaker might be someone who sympathizes with the majority.

Such a person would be concerned in a slightly crazy way about locking that majority down, and willing to take the extreme step of leaking to advance that goal, said Joseph Fishkin, professor at the University of California Los Angeles.

Jonathan Peters, a law professor at the University of Georgia School of Law, said this is not the first time that an opinion has been leaked before its intended release. He said that the outcome in an 1852 case involving the Wheeling and Belmont Bridge Company was reported 10 days before the court issued the decision.

Peters noted that other leaks have commented on decisions after their release, or on personal relationships and conflicts among the justices.

In January, National Public Radio reported that the justices had been asked to wear masks due to a surge in COVID 19 infections, but only Neil Gorsuch refused, prompting a denial by the court.

Some observers said that the controversy, which is certain to persist, could distract from the court's actions on the right to abortion.

Law professor Rick Hasen said the development helped the majority that overturns Roe v. Wade by deflecting commentary to breach of court secrecy norms and lessening the blow by setting expectations.