A leaking Supreme Court puts us at risk


Let’s be clear. The calculated illegal leak of a draft decision by the U.S. Supreme Court is akin to leaking the launch codes for America’s nuclear arsenal. It puts American democracy and institutions at grave risk.
As challenging as it may be given the passions of both sides, we need to put aside whether we agree or disagree that the draft Roe v. Wade decision is a correct interpretation of the Constitution and appreciate the far larger issue: that the leak is a cynical effort to corrupt the confidential deliberative process of our judiciary. It not only improperly sought to create a national firestorm prior to the court’s issuing a final decision, but also to destroy the necessary confidentiality, internal trust and mutual respect needed among the justices and staff.
Unlike the other two branches of government — Congress and the executive branch — which have elected office holders who are answerable to their constituents every two, four of six years — the federal judicial branch has unelected judges and justices who are appointed for life. The reason our founders provided for this was to attempt to immunize them from the outside forces and partisan influences that are involved in getting re-elected or re-appointed.
The founders of this great republic enacted a Constitution that provided for an executive branch and a legislative branch, both of which are answerable to the citizens — and thus also subject to being lobbied and picketed by them. Judges, meanwhile, are obligated to decide matters impartially, without bias, prejudice or partisan influences, based solely on facts properly admitted into evidence in court and in accordance with applicable law. It is illegal for anyone to attempt to intimidate or influence judges outside court proceedings to try to get them to achieve your desired outcome. Picketing their homes or otherwise trying to intimidate judges or their families is a serious crime, and a threat to the premise of the judicial branch.
Chief Justice John Roberts’s statement after the leak only hinted at his level of anger when he described it a “betrayal of the confidences of the Court.” And words alone will not heal the historic damage done to the integrity of the court or sufficiently punish the leaker(s). In its wake, Roberts instructed the marshal of the court to conduct an internal investigation into source of the leak to Politico for the purpose of punishing those involved.

There are those in Washington, however, who suggest that assigning this responsibility to an office whose role is not even remotely one of investigations is akin to asking a shop teacher to construct the Hoover Dam. He or she might be able to do it, but you wouldn’t put a lot of trust in the final product.
At a time when the very integrity of the high court has been violated, there are voices calling for a stronger response. Glenn Fine, of the Brookings Institute, has written that what is needed is an investigative office worthy of its name and prepared for its purpose. In a recent commentary, Fine wrote, “This situation is why I argued … that the federal judiciary needed an experienced, professional, permanent internal investigative office — an inspector general.”
Also in question is what happens to the traitorous individual who is ultimately identified as the leaker? If he or she is an attorney working for one of the justices, the absolute minimum threat should be a highly publicized, humiliating permanent disbarment. The leaker should also face criminal charges, and if there is no current statute providing for criminal prosecution, Congress should immediately enact and implement one.
A news service quoted Michael Frisch, described as a former disciplinary counsel in Washington, suggesting that if the perpetrator is an attorney, “It's going to be a career-defining, if not career-ending moment.”
Americans need to understand that this leak went far beyond the question of Roe v. Wade.
It sought to politicize part of our democracy that was deliberately set above and beyond politics by our founders. You may agree or disagree with the rulings of the Supreme Court, but it is designed to reflect the highest principles of what we call a democratic republic. Damage it and you damage that crucial foundation upon which America has been built and thrived for 233 years.

Ronald J. Rosenberg has been an attorney for 42 years, concentrating in commercial litigation and transactions, and real estate, municipal, zoning and land use law. He founded the Garden City law firm Rosenberg Calica & Birney in 1999.