Washington Post, New York Times, MSNBC columnists weigh in on politics of the Supreme Court leak: 'A disaster'

Columnists for The New York Times, MSNBC and Washington Post all dug into the Supreme Court leak of a potential overturn of Roe v. Wade, with one writer saying it was a "disaster" for the court. 

The Washington Post's deputy editorial page editor Ruth Marcus, in a piece published Wednesday, said that the leak was a "disaster" and that the court's "secrecy has been breached in a way that is unprecedented," adding that the overturning of Roe v. Wade would be a disaster as well.      

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Politico reported the leaked Supreme Court Justice Alito's draft opinion on Monday. "We hold that Roe and Casey must be overruled," the draft said, adding that it was time to "return the issue of abortion to the people’s elected representatives."

The columnists offered theories about the politics of the leak and the strategy behind it.  

"One theory — my leading theory — is that the leak came from the conservative side, possibly from a clerk for a conservative justice concerned that the seeming majority, ready to do away with the constitutional right to abortion, might be unraveling," Marcus wrote.       

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Marcus also said that it could have been a liberal leaning clerk, who was "furious" about the potential ruling. She also suggested though that it was unlikely to sway conservative justices. 

"Sorry, but whoever the source, leaking a draft opinion isn’t bravery — it’s betrayal," Marcus wrote, adding that unlike Congress, the Supreme Court "can't function like this." She said that it was "something else entirely." 

While the leak of Alito's reported draft opinion in the Dobbs v. Jackson Women’s Health Organization case is rare, it isn't the first time such a thing has happened. During deliberations of the Roe. v. Wade case, a memo was leaked to the Washington Post. Following the confirmations of Justices Lewis Powell and William Rehnquist, Roe was reheard, and the 1973 decision was leaked to Time Magazine.  

"The leak of a draft decision, a violation of the secrecy around deliberations, is another escalation, but it’s part of the same pattern, the same trend that’s defined judicial politics for two generations now," New York Times columnist Ross Douthat wrote. 

Douthat referenced the Obamacare decision and the Casey decision, two cases in which the initial vote was different from the final ruling. He suggested that the leak could have come from a conservative who hopes to "freeze" the conservative justices in their vote, "by making it seem like the very credibility of the court rests on their not being perceived to cave under external pressure." 

He said that the evidence against it being a conservative leaker was that the draft opinion went to Politico, as opposed to The Wall Street Journal, for example.  

"If you were betting on a big act of institutional sabotage right now, you would bet on it coming from the left," Douthat wrote, noting that as the court shifted towards the right in the last few years, the left-leaning side of the "legal world" has become "become much more self-consciously activist and anti-institutionalist." 

The columnist also suggested that the Democrats' chances in the upcoming midterm elections could have been part of the strategy behind the leak.

"And finally, to the extent that a leak like this has some delegitimizing effect no matter what, that might be an end unto itself: If the court is going to be conservative, then let it have no mystique whatsoever," Douthat wrote, adding that he believed this last potential strategy is where most liberals would end up.

MSNBC columnist Jessica Levinson also noted that the leak was unprecedented. "My money is on a Supreme Court clerk who agrees with the majority’s decision to overturn Roe," Levinson wrote. 

She offered three theories. "This game of distraction, an attempt to divide our focus, could be helpful to those who are hoping to stem the tide of rage that will result from killing Roe," Levinson said. The second, which was similar to Douthats, was that the leak would solidify the majority votes. She noted that changing their votes would not be a good look for a Supreme Court justice. 

Lastly, Levinson said that the majority might hope that the "rage that many Democrats and progressives feel" might fade out as time goes on. "In this way, the more space between the decision and the midterm elections, the better."

"This leak, whether clumsy or brilliant, has cut at one of the foundational norms of the court: its secrecy," the MSNBC columnist said. 

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Democrats were quick to slam the draft opinion and called for codifying Roe v. Wade. Senate Majority Leader Chuck Schumer, D-N.Y., and House Speaker Nancy Pelosi, D-Calif., said in a joint statement that if the draft holds up, the court was getting ready to "inflict the greatest restriction of rights in the past fifty years."

"Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW," Sen. Bernie Sanders, I-Vt., said after the Politico report came out, adding that they also must end the filibuster.