Amid Leak Probe, Damage May Already Be Done To Inter-Court Trust

Politico: Roberts Investigation Could Make The Supreme Court Very Uncomfortable
Now that Chief Justice John Roberts has ordered an investigation into the breach of an initial draft majority opinion overturning Roe v. Wade, what happens next is a total mystery. There are virtually no precedents for Roberts’ plans to identify the 98-page document’s path from the high court to the pages of POLITICO, a disclosure he termed a “betrayal” of the institution’s trust. Supreme Court leak controversies have occasionally sparked national intrigue and even calls for federal investigations, but those calls haven’t resulted in any significant investigation. (Cheney, 5/4)

The New York Times: Supreme Court Marshal Takes Up Leak Investigation As Theories Swirl
But while the city’s lobbyists, journalists and political operatives trade theories over encrypted messages and social media, Col. Gail A. Curley, the 11th marshal of the United States Supreme Court has been given the task of rooting out the truth in what Chief Justice John G. Roberts Jr. called “a singular and egregious breach” of the court’s operations. ... The second woman to hold the marshal position at the court, Colonel Curley serves as the chief security officer, facilities administrator and head of contracting for the third branch of the federal government. She manages about 260 employees, including the court’s police force, and is a voice that might be recognizable to anyone who has attended or listened to any of the court’s oral arguments. (Shear and Kanno-Youngs, 5/4)

Some say the leak could change the court forever —

NBC News: Former Supreme Court Law Clerks Worry Roe Leak Could Sow Distrust Among Justices And Staff Members
Former Supreme Court law clerks said this week's publication of a draft opinion to overturn Roe v. Wade was a disturbing breach of court tradition that could change how the justices do their jobs. ... Brian Fitzpatrick, a professor at Vanderbilt Law School who clerked for the late Justice Antonin Scalia in 2001 and 2002, said that when he heard Politico had gotten hold of the internal document, "I thought it probably wasn’t true," adding that it seemed "inconceivable" to him. "When I found it was true, I thought we turned a very sad corner," Fitzpatrick said. "I'm worried this could happen again and again and is a sign of the times." (Gregorian, 5/4)

The New York Times: Leak On Roe Heightens The Perception Of A Politicized Supreme Court 
The revelation of a Supreme Court draft opinion that would overrule Roe v. Wade has caused many Americans to express doubts about whether the justices are guided by the law rather than by their political beliefs. In interviews across the country, even some opponents of abortion expressed unease with the way that a majority of the court had coalesced behind the sweeping draft written by Justice Samuel A. Alito Jr. that would undo nearly 50 years of legalized access to abortion nationwide. (Hubler and Wines, 5/4)

More about Justice Alito —

The Hill: Alito Becomes Lightning Rod In Abortion War
Conservative Justice Samuel Alito is coming under new scrutiny and criticism after his draft opinion overturning Roe v. Wade leaked Monday evening, creating a firestorm in Washington. ... “I think he’s going to become a household word,” said Marge Baker, executive vice president for policy at People for the American Way, a liberal advocacy group that tracks the Supreme Court. “For the first time, if this decision becomes final, a majority of the court will have taken away a constitutional liberty that’s been recognized for 50 years. That’s the core of this,” she added. (Bolton, 5/5)

The New York Times: Roberts And Alito, Once Close Allies, Have Taken Divergent Paths
There was a time when Justice Samuel A. Alito Jr., the author of the leaked draft opinion on abortion that rocked the nation on Monday night, was Chief Justice John G. Roberts Jr.’s closest ally on the Supreme Court. The two men are both products of the conservative legal movement, and they were named to the court by President George W. Bush within months of each other. Their voting records were initially indistinguishable. Indeed, when the chief justice had a particularly difficult case, he would often assign the majority opinion to Justice Alito. (Liptak, 5/4)

On the confirmation process and court history —

The Washington Post: Draft Abortion Ruling Puts Spotlight On Justices' Confirmation Hearings 
It is not just the increasingly predictable and evasive answers of nominees that are prodding some senators to conclude that Supreme Court hearings have become empty theater. More and more, the confirmation votes themselves seem a foregone conclusion, with senators hewing to the party line and many using their allotted time to launch political broadsides rather than seek information. (Kim, 5/4)

AP: Justices' Views On Abortion In Their Own Words And Votes
Even before arguments in the current case, the justices themselves have had a lot to say about abortion over the years — in opinions, votes, Senate confirmation testimony and elsewhere. One justice, Clarence Thomas, has openly called for overruling Roe and Casey. (Sherman and Gresko, 5/5)

The Hill: Conservative Court Strategy Bears Fruit As Roe Faces Peril 
“People need to remember that the justices who are willing to overturn Roe v. Wade have been raised on a steady diet of teachings that Roe has always been illegitimate,” said Robert Tsai, a law professor at Boston University. “For most of them, it has been just a matter of when, not if, to vote against abortion rights.” Roe v. Wade has long been in the crosshairs of the conservative legal movement, but political blowback to the decision was not immediate. Its political potency came years later when Republican Party elites seized on the issue of abortion as a way to unify social conservatives and evangelical Christians. (Kruzel, 5/4)

The Hill: Five Times The Supreme Court Reversed A Precedent
The current clash over the fate of Roe is the not the first time the court has wrestled with the tension between deference to past rulings and flexibility to maneuver. Here are five big historical examples of when the Supreme Court has reversed itself. (Dress, 5/4)

The New York Times: The Fight Over Abortion History
The Constitution includes no references to abortion. And it wasn’t until the second half of the 20th century, Justice Alito writes, that people began claiming the idea of a basic right to abortion. Mary Ziegler, the author of several books on the history of abortion (and a critic of the draft decision), said that part was correct. But the opinion, she and others argue, underplays the fact that for most of the first 100 years of American history, early abortions — before fetal “quickening” (generally defined as the moment when the fetus’s movements can be detected) — were not illegal. (Schuessler, 5/4)