Nearly two weeks after Politico published Justice Samuel Alito’s draft majority opinion in the term’s big abortion case, we still don’t know who the leaker is. That’s unfortunate, to say the least, not because our tabloid curiosity hasn’t been satisfied but because this is the most serious threat to the Supreme Court’s integrity in living memory.
The leaker must be found to avoid setting the precedent that decision drafts can be leaked with impunity to influence case outcomes, which would threaten public confidence in the Court at a time when societal trust is already low. It’s one thing to disagree with a ruling, quite another to facilitate real-time critiques of judicial decision-making. If chambers confidences can’t be kept, the judiciary will cease to function as an independent institution.
And that means that the leaker, whoever it is and whatever the motive, has to face real consequences. Although it’s unclear whether this person could face criminal prosecution—short of the scenario of a computer hack (unlikely given that the leak came with information about the justices’ initial and continuing voting stances)—this offense should be treated as a career-killer. That holds true whether the leaker is a clerk, secretary, chambers aide, or even a justice.
The most likely scenario is that....
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