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The Supreme Court Leak Is Not Our Biggest Issue

In the wake of the unprecedented leak of a draft opinion on the contentious Dobbs abortion case, the Supreme Court press office issued the following statement:

Yesterday, a news organization published a copy of a draft opinion in a pending case. Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.


Chief Justice John G. Roberts, Jr., provided the following statement:


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.


We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.


I have directed the Marshal of the Court to launch an investigation into the source of the leak.


NBC reported, Senate Minority Leader Mitch McConnell described the leak as “lawless action” and “yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”


Other Republican lawmakers are demanding a federal investigation into who leaked “This is an attack on the court. This is someone who’s done something that is unprecedented. They decided to leak this,” Sen. Marsha Blackburn, R-Tenn., a member of the Judiciary Committee, told reporters Tuesday.


Sen. Ted Cruz, a former Texas solicitor general who has argued cases before the Supreme Court, called for an FBI investigation into the leak and said the person responsible "should be prosecuted and should go to jail for a very long time."


“It is utterly stunning that anyone at the court would leak a draft opinion. In over 200 years of our nation’s history, this has never happened and I’m appalled,” Cruz told reporters Tuesday.


"This is the most egregious breach of trust at the Supreme Court that has ever happened," he added. "Presumably, some left-wing law clerk angry at the direction the court is going decided to betray his or her obligation, the trust that clerk owed to the justice and to the court."


And the top three House GOP leaders — Reps. Kevin McCarthy, Steve Scalise and Elise Stefanik — issued a joint statement saying the leak must be investigated, calling it a “coordinated campaign to intimidate and obstruct the Justices of the United States Supreme Court."


Naturally, many conservatives want to see the leaker disbarred, prosecuted, fired or perhaps roasted over a slow fire, but is the leak really that momentous an issue, or even illegal?


The Mississippi state legislature’s Freedom Caucus – which will be at the cutting edge of what happens next if Justice Alito’s draft opinion is the final word on the subject – says winning the battle to protect unborn life is more important than finding the leaker.

And Andy Greenberg, writing for Wired Magazine, noted that all of that furor is undermined by an inconvenient legal truth: Leaking a Supreme Court decision doesn't actually seem to be a crime—at least not by any clear and undisputed definition. "Right now, it's unclear whether the leaker broke any law at all," says Trevor Timm, a First Amendment–focused lawyer and the executive director of the Freedom of the Press Foundation. "Even the people claiming this act is beyond the pale and the FBI must investigate haven't pointed to a definitive law this leaker allegedly broke.”


We find ourselves in agreement with the Mississippi Freedom Caucus, much as we’d like to see the leaker identified, and charged if there is any law that’s been broken, it is a lot more important for conservatives to focus on winning the post-decision battles in the state legislatures and the 2022 midterms, which Democrats will no undoubted try to make all about abortion, instead of the disastrous two years of the Biden – Harris – Pelosi – Schumer regime.


  • Supreme Court leak

  • Roe v. Wade overturned

  • Chief Justice John Roberts

  • Dobbs case

  • Justice Samuel Alito

  • abortion

  • 2022 midterms

  • Donald Trump appointees

  • media ethics

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