Opinion: Is the Dobbs Leak Evidence that the Supreme Court Has Lost Its Way?

Aron Solomon

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On Monday night, Politico reported that the Supreme Court has reached a decision in Dobbs v. Jackson Women's Health Organization, and is set to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

In what is the worst leak of a decision in the history of the Supreme Court, it appears as if Justice Alito wrote the opinion of the Court in early February. In a 5-4 decision, with Chief Justice Roberts reportedly in dissent along with the liberal minority, the Supreme Court went against what they had assured the American public - that they embraced Roe v. Wade as established, solidified legal precedent - and now holds the position that a woman’s right to control her reproductive health is not mentioned in and therefore not guaranteed by the Constitution.

Scotusblog.com, arguably the most respected Supreme Court observers on the Internet, tweeted about the leak on Monday night:

“It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”

This is all true but, more importantly, this is the final nail in the coffin of the apolitical Supreme Court of more innocent days.

What makes the Supreme Court the Supreme Court is its innate ability to remain above the fray. Its carelessness that led to the leak that led to Monday night’s revelations makes the Court itself the fray.

This may have been an irreparable mistake of deeply historic proportions. What is clear to many observers of the Court - and I’ll count myself in this group - is that the Supreme Court as an institution simply isn’t working. The Dobbs leak is the final straw but the decision itself may be the weight the Court will ultimately be unable to bear.

The notion that overturning Roe and Casey sets women’s rights back 50 years is a massive understatement and misses the gravity of this leaked decision. Just the fact that a settled foundational law can be overturned after half a century, such as that governing a woman’s right to have dominion over her own body, evinces a Court that isn’t judicially serious.

This incarnation of the Supreme Court has allowed itself to be dragged into politics. Rather than maintaining a safe distance from partisan politics and the passions that inflame the hearts of a deeply divided nation, the Supreme Court has been stoking those flames through their shadow docket and judicial activism. And now they may have passed the point of no return.

That this all happened on the evening of the Met Gala provide a prefect contrast, as captured in this tweet:

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Madison Malone Kircher/Twitter

That contrast between the ephemeral allure of celebrity and the gravitas of the highest court in the land is now blurred. As we all read about one of the most important decisions of the history of the Supreme Court on Twitter, Reddit, or even though a banal TikTok video, the necessary line between the artificial and what is supposed to be sacred is gone now.

As to the decision itself, beyond the absolutely unconscionable leak, this will mean that we as a society are returning to a time where a women’s right to choose will need to be balanced against basic survival.

This decision itself won’t ban abortion, yet it will create the set of necessary conditions to ban abortion. As proponents of the decision will argue, in overturning Roe and Casey, the Court is putting abortion back in the hands of the people and their elected representatives. It is precisely these state representatives that will make abortion illegal.

As safe, licensed, legal abortion will surely be outlawed across massive swaths of the nation, women will have no choice but to revert to the way things were before Roe and Casey - unsafe abortions will again become the rule rather than the exception.

Ultimately, anyone seeing this leak and this decision as a finish line is deeply delusional. This Court and any further incarnation of it won’t stop at extending this judicial philosophy and further becoming a practical tool of partisan politics.

The damage of this leak goes far beyond the leak itself or the person who leaked it - who, if it’s a lawyer, should absolutely be disbarred. The leak will cement distrust within the Court that has been there for years, growing deeper and broader with every judicial term.

At an absolute minimum, what the Supreme Court needs to do today is to release the decision. Explain that, yes, there has been an unconscionable leak and that the issue will be referred to the Department of Justice for an inquiry. But, yes, this is indeed the Decision of the Court and it will be released and effective today. While imperfect as legal literature, the draft decision will be released today along with any draft dissents. The Court reserves the right to tighten up the writing by the end of the current term, but the decision is immediately effective.

Which leads us to this final note - the reality that a massive swath of the American population should be taking to the streets to protest both the process and the substance of the decision.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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