Supreme Court Leak: Why release of draft appearing to strike down Roe v. Wade is historic

WASHINGTON (FOX 5 DC) - Chief Justice John G. Roberts Jr. used the word "egregious" in a statement on Tuesday, slamming the leak of a Supreme Court draft opinion published by Politico, that appears to strike down the 1973 landmark decision that legalized apportion, Roe v. Wade.

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In a Tuesday statement, a Supreme Court spokesperson confirmed the authenticity of the leaked draft opinion. "… it does not represent a decision by the Court or the final position of any member on the issues in the case," the court also noted.

The document posted by Politico was written by Justice Samuel Alito, a member of the court’s six-justice conservative majority, and distributed to other members of the court in February. Opinions typically go through multiple drafts before their publication and elements large and small can change, as can votes.

Chief Justice Roberts wrote in his own response saying, "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."

While there have, on very rare occasions, been leaks of the outcomes in cases, the publication of a draft running nearly 100 pages was without an evident modern parallel.

"We at the Court are blessed to have a workforce – permanent employees and law clerks alike – intensely loyal to the institution and dedicated to the rule of law. Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," Chief Justice Roberts added.

Roe v. Wade: Why was draft opinion suggesting Supreme Court will overturn abortion ruling leaked?

FOX 5’s chief legal correspondent Katie Barlow takes a look at theories that are circulating as to why a draft opinion suggesting the Supreme Court will overturn the 1973 landmark Roe v. Wade case that legalized abortion nationwide could have been leaked.

The leak disrupts an almost unbroken tradition of secrecy at the court. Lawyers and others who watch the court closely were shocked by the draft’s publication.

Part of the reason the Supreme Court has historically been so leak-proof is that only a handful of people have access to decisions before they’re published. The number of people who might see a draft at the stage of the Alito document is about 70.

It was unclear who might have leaked the apparent draft to Politico or what their motivations might be, although there are a few opinions out there on why the leak happened.

GW Law Supreme Court Expert Paul Schiff Berman told FOX 5 he does not want the leak itself to take away from how monumental the draft opinion is. However, he also says when he clerked for Justice Ruth Bader Ginsburg, that every Supreme Court employee is supposed to sign a confidentially agreement and that "it’s drummed into your head from day one that the most important duty you have is the duty of loyalty" to the court as an institution.

The leak has also left experts on both sides of Roe v. Wade furious because the Supreme Court is supposed to be apolitical.

"It didn’t even happen in Bush vs. Gore which was among the most politically contentious the court has ever issued. And so I think that it is bad for the Supreme Court institutionally because it’s yet another indication that the Supreme Court is acting not as a court, but as a political entity that is operating under the rules of every other political institution in American culture and not like an institution that’s instituted to the rule of law," said Schiff Berman.

On FOX News’ "Fox and Friends," Constitutional Law Expert Jonathan Turley said, "What is clear is that what occurred with this leak was an unspeakably unethical act, and it is, unfortunately, a sign of our times. We’re living in an age of rage where nothing seems inviolate anymore. No principals seem sacred. And It makes some of us feel almost naive. You know, even though this is a city that floats on a rolling sea of leaks, the court was always an island of integrity."

Schiff Berman also told FOX 5, "Now having said that, the five justices were on board with this approach, if any of those five justices were to waver between now and the time the official decision came out, it would be known that they were the ones who wavered."

There is concern the leak is now going to put a tremendous amount of pressure on the Supreme Court.

What is not clear is whether the leak was also criminal. A law enforcement source told FOX 5 on background, that if the leak is a matter of national security, it will go to the attention of the Department of Justice, who would then likely ask the Federal Bureau of Investigations (FBI) to open an investigation.

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Chief Justice John Roberts was expected to request this of the FBI on Tuesday but only mentioned the Marshal of the Courts would investigate in his statement. The DOJ declined to comment to FOX 5.

The Associated Press contributed to this report.