This is not what the founders had intended. Alexander Hamilton could not have been clearer in Federalist Paper No. 78 that to do their jobs properly, judges had to be independent of the elected branches. That independence is accomplished by lifetime tenure and the freedom to act without regard to popular opinion or political influences. A leaked judicial opinion trespasses on the court’s work by distorting the entire dynamic in which judicial decisions are reached and finalized.- Peter G. Verniero
Former New Jersey Supreme Court Justice Peter Verniero is shocked, shocked, by the "Unthinkable" breach of protocol by someone unknown - who did the rest of us the favor of a glimpse of the the Supreme Court on the brink of reversing a half century of law because they have been able to construct a supermajority of judges, not voters.
I think most people are shocked by the tone and the conclusions of Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health. which apparently expresses the views of a majority of the Court for whom the draft opinion proposes to speak. That is the substantial evidence of the depth of the emotional and ideological divide in the Court and the country. 200 Fed Soc vetted new
judges are already showing that readiness to drastically intervene in administrative and other
Executive policy decisions. Alarming but not unexpected. What shocks me is that the draft's proposed deference to local prosecutors and legislators could lead to the indictment of women and doctors, and even those who sell medicine or provide material aid.
In my opinion the least important thing we could do is add to the clanging of the bell about a breach of protocol by someone unknown, a breach which may be a violation of law. In the great scheme of things this breach is a nick, not the body blow that the draft threatens.
The breach will be yesterday's news tomorrow. We can await the investigation. I think we all agree that if the leaker applied to work for us we would turn him/her down for fear that he/she would breach the confidentiality we owe our clients. Since there is broad sentiment to say something about the breach I would say no more than that. We have no basis for speculating who is responsible for the leak. Nor does this leak have any broad implications except for the leaker.
- GWC
By Peter G. Verniero
The once unthinkable has now happened. A draft opinion of the United States Supreme Court has leaked to the press, apparently for the first time in history. The leak itself reflects another sad step toward casting the court as a political body. Whatever your preferred jurisprudence, a leak of this kind is a most unfortunate development for the rule of law.
The leak involved the case of Dobbs v. Jackson Women’s Health Organization, which implicates abortion rights found under Roe v. Wade. That the leak related to an abortion decision only exacerbates the harm that it has inflicted on the judiciary as an institution. Few issues other than abortion have caused more national divisiveness. There are deeply held views on both sides. It is a critically important subject deserving of an orderly judicial deliberation.
That orderly deliberation has now been interrupted. A wave of public praise or criticism for the draft opinion is being registered by advocates, depending on their perspective. Such commentary after an opinion’s official release is a healthy hallmark of democracy. But a high volume of commentary on a draft opinion runs the risk of something else entirely.
A judicial opinion goes through many iterations before it is officially released. Sometimes the final product closely resembles the first draft, sometimes not. Indeed, sometimes a first draft of a majority opinion turns into a concurring or dissenting opinion by the time the court is finished with it. Unless the final version of Dobbs ends up, word for word, being the same as the leaked version, we always will wonder whether the final version was unduly influenced by public commentary.
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