Small: Unprecedented attack on judicial system

Unprecedented attack on judicial system

By Jonathan Small

For some on the political left, failure to achieve their goals through existing processes does not lead them to reassess their tactics or strategy. Instead, they immediately resort to unprecedented efforts to destroy the system. If they can’t win playing by the rules, some on the left want to jettison rules altogether.

But that attitude doesn’t result in a better world for all. Instead, it breeds anarchy. The recent release of a draft U.S. Supreme Court opinion overturning Roe v. Wade provides the latest example.

If the court majority’s decision falls in line with the released draft, the court is poised to return regulation of abortion to states. That’s a major development, but it won’t end the debate over abortion. In fact, it will allow a much more robust debate. While some states will be far more restrictive, others will have no meaningful limits. Individuals on both sides will have to make their case state by state.

That’s how democracy works. The individual who leaked the draft opinion is trying to not only disrupt that state-level democratic process, but also attack the judiciary as well. The leak is an attack on two branches of government—the legislative and judicial—in one fell swoop.

A draft opinion is part of the U.S. Supreme Court’s deliberative process. Justices draft opinions, share them with other justices, and refine them before an official opinion is finalized and released. Dissenting justices also get to review the majority opinion, allowing dissenters to refine their own arguments.

That system is meant to ensure court opinions are thoroughly vetted to produce legal clarity. But that system falls apart if justices cannot trust one another (or their colleagues’ staff). If the leaker is not identified and punished, there will be significant, long-term harm to the U.S. Supreme Court as a deliberative body.

In the short term, the leak has unleashed efforts to intimidate justices. Congressional Democrats have threatened political action to pre-empt the decision, while some individuals have threatened physical violence against individual members of the court. Indeed, barricades have been placed around the U.S. Supreme Court.

If the U.S. Capitol riot on Dec. 6, 2020, was an “insurrection,” as critics claim, then leaking the court’s abortion opinion falls into the same category since it is an effort to undermine a branch of government.

Conservatives have a natural distrust of centralized government power, and some liberals mock that skepticism. But if even members of the U.S. Supreme Court can be harassed in this illegal fashion, then what hope does the average citizen have of being protected? Obviously, the only safeguard is to limit government power. As U.S. Supreme Court justices are learning, those given access to significant power—even if it involves something as simple as access to a draft opinion—cannot be blindly trusted to exercise that power appropriately.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs.