Thus far, New York Times coverage of the Supreme Court bombshell -- a leaked opinion that would overturn the 1973 abortion ruling Roe v. Wade -- has been only slightly hysterical. But Adam Liptak’s front-page story Wednesday, “Extraordinary Breach Delivers Blow to the Court’s Legitimacy” is noteworthy for harping on the leak of a draft opinion as a blow to the Court’s legitimacy – before we know who leaked it.
Liptak, the paper’s Supreme Court beat reporter, actually admitted the leak of the draft opinion of Dobbs v. Jackson Women's Health Organization, written by conservative Justice Samuel Alito, risked denigrating the legitimacy of the court -- but then on pure supposition suggested that a pro-life source (presumably on the staff of a conservative Justice) leaked the ruling. Which may explain the reporter’s surprising aggrievement over the leak itself.
Liptak also brought in the unrelated matter of Ginny Thomas’s opinions to make his ongoing case for an illegitimate Supreme Court, at least now that conservative justices have a working majority:
Sources have motives, and the leaked draft opinion overturning Roe v. Wade raises a question as old as the Roman Empire. Cui bono? Who benefits?
Not the Supreme Court as an institution. Its reputation was in decline even before the extraordinary breach of its norms of confidentiality, with much of the nation persuaded that it is little different from the political branches of the government. The internal disarray the leak suggests, wholly at odds with the decorum prized by Chief Justice John G. Roberts Jr., was a blow to the legitimacy of the court.
He highlighted liberal justice Sonia Sotomayor, who alarmingly suggested overturning Roe v. Wade would create the perception that the Court was political – as if decades of liberal decisions haven’t already done that.
Speaking of hurting the Supreme Court’s legitimacy, Sotomayor claimed during debate earlier this year that 100,000 children were hospitalized with COVID when the actual number was 800. Only one Times writer, David Leonhardt, has apparently seen fit to mention that fact.
The court sustained collateral damage in March, when it emerged that Virginia Thomas, the wife of Justice Clarence Thomas, had sent incendiary text messages to the Trump White House in the weeks leading up to the Jan. 6 attack and that Justice Thomas not only had failed to disqualify himself from a related case but also had cast the sole noted dissent.
The harm from the leak was more direct, raising questions about whether the court is capable of functioning in an orderly way.
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In an editorial last week, The Wall Street Journal expressed concern that Chief Justice Roberts was trying to persuade Justices Kavanaugh and Barrett to take his narrower approach.
The point of the leak, then, may have been to lock in the five-justice conservative majority.
Liptak found law professors to back him up, though many suspect the leaker was a pro-choice staffer hoping to gin up public outcry and perhaps change a justice’s vote. The fact that the draft opinion was leaked to left-leaning Politico also points that way. And surely a hypothetical “woke” staffer would have no qualms about ignoring guardrails in the name of a cause.
Supreme Court “delegitimization” is a tired old argument from Liptak – the arrogance to think that after decades of politicized liberal decision-making, the august body of the Court would only lose its credibility if a badly reasoned but liberal-pleasing decision like Roe v. Wade was overturned.
