Who Leaked the Supreme Court’s Draft Opinion to Take Down Roe v. Wade?

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May. 3 2022, Published 2:48 p.m. ET

Americans are up in arms on either side of the Roe v. Wade argument on May 3 following the leaking of a Supreme Court draft opinion citing the intent to overturn the 1973 landmark decision.

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As for who’s behind the Supreme Court’s leaked draft decision, that’s a story in and of itself. Here are the details.

The Supreme Court draft opinion aims to dissolve landmark legislation protecting abortion rights.

In 1973, the Supreme Court protected Americans who conceive with a landmark legislation called Roe v. Wade. The legislation’s purpose is to make it unconstitutional to get in the way of a person’s right to an abortion.

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Justice Samuel Alito’s draft opinion from February has been leaked, citing his intent to remove federal abortion protections. This would make it illegal to have an abortion in about half of all states where anti-abortion laws have been instated.

In short, the leaked opinion, which experts predict will go public in June, holds serious weight. How did the draft get leaked in the first place?

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This is America’s first leaked Supreme Court draft opinion.

The leaked documents mark the first full Supreme Court draft opinion to be leaked in the entire history of the U.S. judicial system. The Supreme Court has managed to maintain utmost secrecy, and that's intentional. In a 2017 Washington Post article by Stephen L. Carter, the author wrote, “The staff of the Supreme Court is very small, and the circle of knowledge of pending opinions is even smaller.”

Did a Supreme Court justice leak the draft opinion on Roe v. Wade?

It’s possible one of the Supreme Court justices themselves (or a subordinate) leaked the Roe v. Wade draft decision.

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There are currently nine justices on the Supreme Court (including, of course, the draft opinion’s author Alito). Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagen are considered to lean on the liberal side of the political spectrum. Anti-abortion measures have historically been associated with conservative political leanings, which could give merit to this theory.

In contrast, a conservative justice (like Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, or Chief Justice John Roberts) could have done the same for the purpose of inciting protests and distracting from the decision itself.

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Alternatively, a progressive clerk looking to give America a heads up in the hopes of changing course could have potentially risked their career to serve as a whistleblower.

Justice John Roberts called the leak an "egregious breach" of trust.

Chief Justice Roberts said the leak was a breach of trust and that “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.”

Roberts ordered the Court Marshal to launch an investigation, which could result in a release of who really leaked the draft opinion.

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