At their conference, secrecy is so guarded that no one else is allowed in the room. Justice Amy Coney Barrett, as the junior-most justice, is charged with opening the door if someone knocks.
But such precautions seem almost quaint now.
The court that prides itself on collegiality, independence, a devotion to protocol and process is reeling from what Chief Justice John Roberts called a betrayal of confidence
“intended to undermine the integrity of our operations.” While leaks are common in the other branches of government, a leak of a draft Supreme Court opinion
published by Politico in the most important abortion case in decades, is seismic.
In the coming days an investigation launched by Roberts
will commence and presumably have a long-term impact that will trigger changes in protocol and add new levels of secrecy.
In the short term, however, the implications of the leak could be more serious. That’s because in the coming weeks the justices will have to resolve the abortion dispute as well as a major Second Amendment case and others dealing with immigration, religious liberty and the environment.
“The nine justices, their more than three dozen law clerks, and the administrative aides must constantly and collegially collaborate to draft opinions in order for the Supreme Court to function,” said Mike Davis, a former clerk to Justice Neil Gorsuch
. “This requires strict confidence, and utmost trust, both of which this unprecedented leak shattered.”
Those deliberations — that involve a careful choreography between chambers — could be damaged going forward. Such work requires frank conversations, and a shared trust, and that might be difficult to muster knowing that what happens behind closed doors could be broadcast to the world.
Here are the major cases the court is considering that could have a major impact on American life:
Roe v. Wade and abortion
While much has been said about Alito’s draft opinion, a court spokesman made clear that it was not final and did not reflect the final vote of any member of the court.
That would suggest that there is still a possibility that one or two justices that presumably cast an initial vote to overturn Roe may be in play. One option that Roberts has backed would be to uphold the Mississippi 15-week abortion ban but not explicitly overturn Roe’s guarantee of a right to abortion.
It is not unheard of for votes to change, or for a dissenter to write so eloquently that he or she might draw the unexpected support of a colleague initially in the majority.
Second Amendment rights
The court hasn’t issued an opinion in a major Second Amendment case
in more than a decade, but it has an opportunity before it now.
Justices are considering whether to strike down a New York gun law enacted more than a century ago that places restrictions on carrying a concealed gun outside the home.
As the justices debate the issue in secret, they will decide whether to issue a broad decision holding that the right to keep and bear arms extends to the right to carry a handgun outside the home, or whether to focus more narrowly on a handful of laws that give licensing officials a large degree of discretion in deciding who gets a permit.
School vouchers and prayer
Behind the scenes, the justices are likely divided in a case concerning the exclusion of religious schools from a Maine tuition assistance program that allows parents to use vouchers to send their children to public or private schools.
The conservatives on the court have in recent terms expanded religious liberty rights, while the liberals have moved at times to bolster the separation between church and state.
Another pending case concerns a former high school football coach who wants to pray at the 50-yard line after games. At oral arguments, the conservatives seemed sympathetic
to the religious rights of the coach, whereas the liberals expressed concerns about students feeling coerced to participate in prayer led by their coach.
The justices are also considering a case brought by Republican attorneys general who argue that the Environmental Protection Agency has no authority to regulate planet-warming emissions from the power sector.
They argue, instead, that the authority should come through Congress. The result will have enormous implications for Biden’s climate agenda and the future of environmental regulations overall.
‘Remain in Mexico’ and immigration
There are several disputes concerning immigration before the court.
In one, the Biden administration seeks to end the Trump-era “Remain in Mexico” policy, which requires non-Mexican migrants to stay in Mexico until their US immigration court dates. Lower courts have blocked Biden from ending the policy. The justices will be reviewing a sweeping lower court decision that could significantly alter immigration programs going forward.
By the end of the term, Roberts will have navigated the court through one of the most divisive dockets in recent history at a time when the court’s popularity is at an all-time low — and that was before the leak of the abortion draft opinion.
In his statement announcing the investigation Roberts called the leak “a singular and egregious breach” as well as an “affront.”
Although he claimed the “work of the Court will not be affected in any way” — It already has been.