Silverglate: Supreme Court leak upends foundation of secrecy

The front pages of newspapers, television news programs and social media are consumed by reports that some unknown person has leaked to the public a draft of an opinion authored by conservative Supreme Court Justice Samuel Alito that, if joined by four other justices (making a majority of the nine-member bench), would reverse the long-standing opinion legalizing abortion-on-demand, Roe v. Wade, an opinion that has stood as the law since it was decided on Jan. 22, 1973.

While it is perfectly reasonable to ask how such an egregious breach of Supreme Court privacy came to be, the bottom line is that it was absolutely no surprise that the High Court would take advantage of this opportunity to reverse one of the most detested (by conservatives) High Court opinions ever issued. Each of the conservative justices, in his or her own way and on various occasions, has voiced outrage at what is viewed as a massive overreach due to the court’s having exceeded its authority to decide cases rather than to legislate.

Thus, since the conclusion of the leaked opinion was hardly a secret, what, one asks, has spurred the volume of outrage we’ve experienced in recent days? The answer would appear to be that the justices, over the centuries of the court’s existence, have fostered the impression that its conferences and draft opinions are the equivalent of national security secrets or, to use another analogy, as confidential as the enclaves by which the Roman Catholic Church selects a new pope.

This level of secrecy does have analogies in other corners of the federal government. Certain national secrets and the documents that contain them are designated as “classified.” There are, for example, still some classified secrets dating from the Second World War. The names of some agents of the nation’s premier intelligence organization, the Central Intelligence Agency, are kept as classified secrets, sometimes without time limit. The identities of FBI informants are rarely disclosed, even decades after their roles have ended.

Yet, one still wonders why this current leak has raised such ire and outrage. After all, eventually the court’s opinions — majority, concurring and dissenting — were bound to become public. Nobody would die or be injured by the premature disclosure of a draft opinion. A reasonable conclusion is that this kind of judicial secrecy, and the culture that such secrecy has bred, have become an unquestioned article of faith.

Harvey Silverglate is a criminal defense and civil liberties lawyer and writer who lives and works in Cambridge, and who occupies an “of counsel” position in the Boston law firm of Zalkind, Duncan & Bernstein, LLP. The assistance of paralegal Emily Nayyer is gratefully acknowledged.