On Monday evening, Politico reported that five Supreme Court justices had decided to overturn Roe v. Wade, abolishing the constitutional right to an abortion that has existed since 1973. In addition, the outlet published a draft of the court’s opinion, written back in February by Justice Samuel Alito. It’s possible that votes will change before the final ruling, which is expected in June, but as of now, conservatives appear to be on the verge of a monumental legal victory they have pursued for half a century.
This should be a cause for celebration among Republicans. But the GOP’s biggest names have instead treated their impending triumph mostly as an afterthought, while furiously highlighting the fact that someone leaked the decision early. Most have assumed without evidence that a liberal clerk must have fed the document to reporters in order to stir up a public backlash, and possibly cow conservative justices into switching their votes.
“By every indication, this was yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law,” Senate minority leader Mitch McConnell said Tuesday morning, adding that “the Department of Justice must pursue criminal charges if applicable.” His response was typical among elected Republicans, who repeatedly called the leak an “assault” on the court.
The response among conservative pundits, meanwhile, has often been outright unhinged (not that there’s anything unusual about that). Some, like Daily Wire editor Ben Shapiro, have suggested liberals are trying to incite murder. “There is little question that this leak is designed to create threat to the life and limb of any justice who signs onto the majority opinion,” he tweeted. (Such a claim might be reasonable if the pro-choice movement had any significant history whatsoever of political violence; but unlike the anti-abortion movement, it does not.) Others, such as commentator Matt Walsh, have called the leak an “insurrection,” and have tried to claim it is a graver attack on American democracy than the Jan. 6 Capitol riot—which was, as you may recall, an actual violent putsch in which a mob tried to upend the results of a presidential election.
Many Democrats have dismissed these reactions as being merely for show. Some, including Sen. Majority Leader Chuck Schumer, have suggested that Republicans are trying to distract from the substance of the court’s decision by talking about the leak instead, because overturning Roe is deeply unpopular. (Like, really, really, really unpopular). That’s plausible enough, especially after McConnell told reporters today that they needed “a lecture to concentrate on what the news is today. Not a leaked draft, but the fact that the draft was leaked.” Conservative media and politics also thrives on a non-stop persecution complex, and so its natural that Republicans would seize on any narrative in which they are being victimized by the forces of liberalism, even in their moment of near total triumph on a generation-defining political battle.
But in some ways, the Republican fury over this leak seems completely rational and sincere. This is not to say it’s reasonable. Even setting aside the hysterical comments about murder and insurrection, we have no idea who actually leaked the opinion; it’s entirely possible a conservative clerk or judge released it in order to pressure their colleagues not to switch their votes, since doing so would make it seem like they were caving to a liberal outrage. All we can do for now is speculate. (Though, if that turns out to be the story, I expect a lot of retractions). Beyond that, the actual policy goal Republicans are pursuing—stripping the right to reproductive health care from millions upon millions of women—is morally repugnant and typically only happens in countries that are backsliding out of democracy. But with that all said, it still makes perfect sense for Republicans to be very, genuinely mad that this document got out.
First, I’m sure that some Republicans are genuinely concerned that this could ruin their impending victory. She might be jumping to conclusions, but there’s no reason to think Fox News host Laura Ingraham is lying when she says she’s mad about “a naked attempt to try and change the outcome before the final decision is issued.” The GOP is haunted by the possibility that one of the court’s conservatives could go squishy and change their mind at the last minute, much the way Chief Justice John Roberts did when he decided to uphold the Affordable Care Act’s individual mandate after initially voting to strike it down. Roberts did not sign on to the leaked draft opinion, and CNN reports that he wants to allow a 15-week abortion ban without junking Roe entirely. Some conservatives have to be worried about a scenario in which public anger helps the chief justice pick off one more conservative ally, and forces the court to write a more moderate decision. Genuine nerves might help explain why one conservative politician after another has urged the court to “stay strong” and “not be swayed.”
To Democrats, Republicans look like an NFL team complaining about a meaningless penalty call while they’re about to win the Super Bowl. In the eyes of Republicans, though, there’s still a chance they’ll somehow lose the game with only seconds left on the clock (and, to maybe overextend the metaphor, if they do lose it’ll be because the refs didn’t call an obvious offensive pass interference penalty on their opponent; the refs in this case being the media).
Besides the sheer anxiety factor, it isn’t exactly a surprise to see Republicans getting worked up defending the Supreme Court’s honor, and treating any breach of its internal procedures as a violation of “sacred traditions,” as Tennessee Sen. Marsha Blackburn put it. After all, they control the institution! They have a durable, ideologically driven majority, meaning the party now has a vested interest in defending the court’s institutional legitimacy while also pretending as if its decisions aren’t driven by politics. The worst thing that could happen to the GOP would be for the public’s trust in the court to collapse, just as it achieves its crowning but politically unpopular legal victory. The combination might create support for reforms that limit the conservative bloc’s power. It’s even dangerous for them if Democrats’ faith in the justices collapses, since court packing could become a higher profile demand among the party’s base.
As my colleagues at Slate have noted, such a legitimacy crisis may already be underway. Polling by both Gallup and Pew has found eroding support for the court, especially among liberals, who believe it has become too conservative. According to Pew, about two-thirds of Republicans still have a favorable view of the justices. But among Democrats, just 46 percent do, down from 65 percent in 2021; 53 percent of Democrats, meanwhile, have an unfavorable view.
In that sense, this week’s leak may symbolize something deeply threatening to Republicans. If a liberal clerk really was responsible, that means someone inside the court decided that it had lost so much institutional legitimacy that it was acceptable to flout its rules and treat its ruling as just another form of political combat. It would be terrible for the conservative agenda long term if that idea were to catch on. No wonder Republicans are mad about it.
