The recent leak of the initial majority draft opinion on Roe v. Wade has many implications of democratic erosion. The significance of this occurrence goes beyond the potential overturning of this momentous case that has been in the books since 1973. First and foremost, it represents a restriction on individual freedoms and liberties which this country so proudly proclaims it is founded on. The overturning of previous court precedents in itself is something that is unusual and raises questions. On top of these problems is the leak itself. While rumors of decisions have made their way to outside sources in the past, this represents the first time that an entire draft has ever been leaked. This in itself represents a major hole in the inner workings of the court that has previously been seen as a symbolic wall of government institutions. It has also been furthered by misinformation by elected politicians who finger point the leaker as having political aims, further increasing polarization and politicization.
The leak of the court’s entire draft opinion in and of itself is a concerning breach in the institution of the court. Strong governmental institutions are supposed to be free from outside influences and have solid internal structures. While rumors and hearsay have been leaked before, never has an entire draft opinion. This has many implications that the people in the institution that help to support the court can no longer be trusted and thus further diminishes the integrity of the institution. It has also led to both sides of the political aisle pointing fingers at each other over the partisan affiliation of the leaker. Senators such as Ted Cruz have used this to lay blame at democrats seeking to use this as a driving force for increased midterm election turnout. Others have argued that the leaker is in fact a conservative. Regardless of their party affiliation, the blame game that has occurred has led to misinformation in the media and has led to further polarization in the country.
As Justice Thomas himself said, this leak has changed the nature of the court. Far gone is the time in which the court was largely non-partisan and looked at issues through an objective lens. The court has been slowly becoming more divided over the past decade, with many decisions often being split. The previous administrations nomination of three young conservative judges has furthered this divide with their nomination processes becoming a national spectacle. With the political implications of these nominees, all of their decisions are seen as having political intentions rather as opposed to unbiased reasoning. This has caused further splintering and polarization in this country which have turned many of those in the middle away from the political process and a lack of faith in government institutions as people believe they have succumbed to this increased politicization and lost their objectivity.
The arguments used in this majority decision also have worrisome implications. The majority’s opinion in this draft uses the strict constitutionalist view that matters not clearly laid out in the constitution are not for the courts to rule on, but rather the power be given to individual states. This rationale, if used in this case, can have much broader implications in the future that affect other groups that can thus be determined by states, such as marriage equality, interracial marriage and other rights that have been substantiated by the highest court. The supreme court’s ruling on these rights is not an ancient phenomenon. In 2008 when a ballot measure, prop 8 was put up for a vote and passed in California to make gay marriage illegal, it was ultimately the supreme court that overruled it, effectively making gay marriage legal throughout the United States. If this ruling passes, as is likely to happen, we will see more divide between states, parties, and the country, with the US Supreme Court facilitating this tear while eroding its nonpartisan institution.
How can these issues be solved? No matter your political affiliation, the ability of a sitting president to effectively change the composition of the court with young judges that last for generations is an inherent problem with how the US Supreme Court operates. A potential fix would be to institute 16 year term limits for each justice that are in turn staggered so as to give each president a chance to appoint a judge. While this may seem extreme to some, it would allow the voters to have more of a say in this third branch of government.