Few Republican lawmakers were celebrating Tuesday after the disclosure of a Supreme Court draft opinion that would overturn Roe v. Wade. Instead, they were angrily demanding answers to how the document became public in the first place.
GOP leaders trained their fire on the breach of Supreme Court protocol that led to POLITICO’s publication of the draft opinion by the court’s conservative majority, with only a handful of Republicans cheering the substance of the document itself even though they’ve long opposed Roe.
“I don’t know who did it, their motives,” said Sen. Lindsey Graham (R-S.C.), a member of the Judiciary Committee. Speaking directly to the person or persons responsible, he added: “I don’t care what your motives were. You did a lot of damage to our country and I don’t know if we can repair this, but we’ll try.”
On Tuesday morning, Chief Justice John Roberts confirmed the draft’s authenticity — emphasizing that it was not a final opinion — and said he had ordered the marshal of the Supreme Court to investigate the “betrayal of confidence.”
Though little is known about how the draft opinion came to light — or who might benefit most from its disclosure — some Republicans portrayed it as a breach by a progressive clerk or justice hoping to marshal public pressure against the five justices linked to the document. It’s the latest in a string of Republican accusations about the sources of breaches in high-profile matters, including politically charged congressional and criminal probes.
Republicans who have long hoped the court would repeal Roe’s establishment of abortion rights demanded investigations, firings and even prosecutions for the breach.
“This lawless action should be investigated and punished as fully as possible,” Senate Minority Leader Mitch McConnell, who helped shape the makeup of the current court, said in a statement. “The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable.”
“One of the court’s most essential and sacred features was smashed just to buy the outrage-industrial complex a few extra days to scream nonsense about what the court might rule,” McConnell added.
House Republican leaders similarly said in a statement that the disclosure was “an attempt to severely damage” the court and part of a “clearly coordinated campaign to intimidate and obstruct the justices.”
Authored by conservative Justice Samuel Alito, an appointee of George W. Bush, the draft opinion amounted to an unsparing rejection of Roe. Some legal scholars pointed out that it would raise significant questions about a slew of other Supreme Court precedents.
The breach of a draft opinion is an unprecedented departure from the norms on the normally airtight court, which has stood out among government institutions as relatively impervious to unauthorized disclosures even in tumultuous times.
“We’re about to find out what our Department of Justice is made of,” Sen. John Kennedy (R-La.) said Tuesday. “We have had an unprecedented leak. As despicable as it is dangerous.”
Other Republicans made similar comments, with Sen. Mitt Romney (R-Utah) saying it “should be fully investigated and those responsible should be punished,” and Sen. Josh Hawley (R-Mo.) calling for the leaker to be disbarred. Sen. Mike Braun (R-Ind.) said it was an “attack on the independence of the Supreme Court by the Democrat Party and the corporate media.”
Hawley was among the few Republicans actually cheering the contents of Alito’s draft. He said it was “voluminously researched, tightly argued, and morally powerful.”
Democrats largely took an inverse approach, acknowledging concerns about the breach but pivoting quickly to the details of the opinion. They argued that their GOP colleagues’ laser focus on the disclosure itself is an acknowledgment that GOP views on abortion are unpopular with voters.
“Republicans are coming to terms with the fact that their position on reproductive choice is wildly out of step with the American public,” said Sen. Chris Murphy (D-Conn.). “It is going to have significant ramifications for Republicans, and I’m sure they’re interested in doing everything they can to try to distract people from the underlying threat to women’s health care and instead focus on process.”
If the conservative majority affirms its substance in a matter of weeks, when the court officially is set to release its final ruling, many in President Joe Biden’s party warned that the loss of abortion rights would create widespread fear and chaos.
“I don’t condone the leaking of internal Supreme Court documents. Senator Kennedy’s correct; it is unprecedented,” said Senate Judiciary Committee Chair Dick Durbin (D-Ill.). “I don’t know who leaked the opinion or why. But I know today women and men across this country are grappling with the real concern and the fear that they can lose a critical constitutional right in a matter of weeks.”
Sen. Mike Lee (R-Utah) sharply rejected Durbin’s position.
“To suggest that the true injury here is that inflicted by this opinion gets it completely, 180 degrees backward,” he said, saying it’s urgent to “protect and defend the legitimacy of the court” regardless of views on its individual decisions.
Many on the left speculated that POLITICO’s story would in fact benefit those seeking to overturn Roe because it would harden the position of the four justices reported to have joined Alito’s opinion: Brett Kavanaugh, Neil Gorsuch, Amy Coney Barrett and Clarence Thomas. But neither Democrats nor Republicans opining about the breach suggested they knew the identity of the person who disclosed the draft opinion.
And in the absence of evidence, GOP lawmakers hammered on the unproven assumption that the breach was orchestrated by the left in a bid to intimidate conservative justices to back off their opinion.
Republicans have long decried breaches of information in high-profile matters, often presuming the sources without direct evidence. For example, during Special Counsel Robert Mueller’s investigation of Russian meddling in the 2016 election — when his team of prosecutors almost never commented on their work — Republican lawmakers often accused his team of leaks.
Kennedy, speaking at a Judiciary Committee hearing on judicial ethics Tuesday morning, called on the FBI to investigate every person who had access to the draft.
His comments prompted Sen. Sheldon Whitehouse (D-R.I.) to note that such a probe would raise significant separation of powers concerns — with executive branch agents interviewing “clerks and staff and justices themselves.” Kennedy said the Supreme Court’s own police force could partner with the FBI to mitigate those concerns.
Whitehouse also wondered, pointedly, what law the so-called leaker could be investigated for violating.