VIDEO: Protecting the Sanctity of the Supreme Court

This is the reason that jurors are sequestered. This is the reason why judges have to recuse themselves from certain cases if there's a conflict of interest. We want to protect the legitimacy of the process.  

This week on ALEC TV, Jonathon Hauenschild, ALEC’s Director of the Center for Legal and Regulatory Reform and Nino Marchese, Criminal and Civil Justice Task Force Director, sat down with Elizabeth Slattery, Senior Legal Fellow at the Pacific Legal Foundation to discuss the ongoing fallout from the leak of a draft majority opinion in the Dobbs case. Below are highlights from their conversation.

Nino Marchese: Are there any prior examples of a court opinion or draft being leaked like in this Dobbs case?

Elizabeth Slattery: We have never seen a full draft majority opinion released but there have been leaks throughout history. In the modern era perhaps most famously was the leak that came after the court’s ruling in National Federation of Independent Businesses versus Sibelius in the Obamacare ruling. There was the leak that Chief Justice Roberts had flipped positions and he was originally with the unsigned dissenters.

Going back in history, in Roe v Wade, itself, there was a news story that came out the morning the opinion came out, apparently a clerk spoke to a reporter on background and shared what the forthcoming result was going to be. I suppose there was some sort of an understanding that the reporter would not release the story until after the opinion came out and the newspaper got to jump on the Court by a couple of hours.

But, of course, the Politico story is the first ever of this bombshell of releasing a full draft majority opinion.

Nino Marchese: And I think that’s part of why we’re seeing such a big outcry. Abortion is obviously a huge issue. Let’s talk a little bit about what’s happening right now because of the leak. We are seeing significant protests to this draft opinion. They’ve taken to the neighborhoods of the Justices themselves. So far, they’ve been peaceful, but the question is, is this kind of behavior even legal? Are these genuine protests that are protected by the First Amendment or are they attempts to intimidate the Court? Where is that line drawn?

Jonathon Hauenschild: There is a distinction about where the protests are occurring. You would expect people to protest outside the Supreme Court. But then we saw a shift with protesters outside the Justices’ homes. That is where it crossed the line. The First Amendment does guarantee the right to petition your government for a redress of grievances and that’s where you see the protest in front of the Supreme Court building. But when you are protesting outside the Justices homes, that feels more like an attempt to intimidate a Justice and trying to persuade them through other means.

Elizabeth Slattery: I looked at the federal statute because I’ve been seeing a lot of discussion of it on Twitter and it says that picketing or parading near the residence of a judge, juror, witness or court officer with the intent of interfering with, obstructing, impeding or with the intent of influencing any judge in the discharge of his duty is subject to fines and imprisonment.

As an example, consider a murder trial and people showed up outside of the judges’ home or the jurors’ home.  I think most people would conclude the protesters were  trying to influence the outcome of the trial. I think most people would agree that’s unseemly and we don’t want to encourage that kind of behavior. I think the Justices should be able to feel safe in their homes regardless of whether it’s conservative Justices or liberal Justices.

It was heartening to see the Senate unanimously pass a bill last week to authorize increased protection for the families of Supreme Court Justices, as well. Several of them have young children and I would be concerned as a parent with young kids myself.

This is the reason that jurors are sequestered. This is the reason why judges have to recuse themselves from certain cases if there’s a conflict of interest. We want to protect the legitimacy of the process.

Click here to watch full interview.