Never in the history of the United States has a Supreme Court draft opinion been released to the public.
The court traditionally operates like Mount Olympus, with opinions passed down from above and the inner workings – the legal haggling, debating and cajoling necessary to achieve a majority – all take place in cloistered chambers.
It’s a practice that demonstrates the court’s unparalleled power to interpret, enforce, or strike down any law passed by Congress and establish or dismantle individual rights with the stroke of a pen.
It is a power that was assumed by the court itself in the early 1800s – and which is inherently undemocratic.
Power has survived and been respected for as long as it has, thanks in part to the protections and procedures that court champions have meticulously crafted over the centuries.
Only the nine justices and their handful of clerks — law graduates selected for their accomplishments and intellect — are privy to the machinations of the Supreme Court’s judicial process.
Initial opinions are cast in a non-binding vote shortly after a case is presented to the court, draft majority and dissenting opinions are circulated, and amendments are made.
There are reports and stories – from former judges and people familiar with the process – of how draft opinions can sometimes bear little resemblance to the court’s final decision.
The leak of Mr Alito’s draft majority opinion – tearing up Roe v Wade – short-circuits that process and could seriously hurt the Supreme Court as an institution, sowing mistrust among justices and their clerks and fully exposing power judiciary to the sometimes harsh influence of American politics.
Accusations and conspiracy theories are already flying – that the backer was a liberal making a last-ditch effort to prevent Roe’s repeal, a conservative worried that Alito’s radical views might be overruled, or a moderate who wants making a final opinion reducing abortion protections seems less extreme.
Chief Justice John Roberts called the leak a “betrayal of the trust of the court” and a “singular and flagrant breach” of trust.
He ordered an investigation into the origins of the leak – but the damage is done.