NYT's 'insider' perspective on Dobbs decision raises 'alarming' concerns about SCOTUS confidentiality, legal experts say

Behind-the-scenes research into the Supreme Court's decision to overturn Roe v. Wade published Friday by The New York Times had legal experts raising renewed concerns about the confidentiality of the high court's private deliberations.

Citing “internal documents, contemporaneous memos and interviews with more than a dozen people on the court,” the NYT presented an insider's account of the decision-making in Women's Health Dobbs v. Jackson, including the majority's quick approval of Justice Samuel Alito's draft opinion and Justice Brett Kavanaugh's proposal to delay announcement that they would accept the case until more time has passed since then. The death of Judge Ruth Bader Ginsburg. The details included in the account raise an “alarming” continued confidentiality issue after the escape of Alito's draft opinion in May 2022, legal experts said in response.

Jonathan Turley, Professor, George Washington University School of Law he wrote Friday that the report turns “a confidential process into a virtual fishbowl where judges must now wait for their internal responses to be aired publicly.”

“Following the leak of Dobbs' own draft, the latest story about the justices' response to the draft from the Court is alarming,” he wrote. “The NY Times quotes people about how and when the justices responded to the draft, deliberations that are usually fiercely guarded by the Court.”

He noted that not finding the person responsible for leaking the decision “has destroyed a culture of confidentiality and civility.”

Former Assistant Attorney General Jeff Clark as well published Friday that the article “exacerbates” the leak of Dobbs' opinion with details about internal deliberations.

“We had to wait for these kinds of details until the judges' notes or diaries were released after long periods of time to help form the judgment of history and not the passions of politics,” he wrote.

The article reveals, among other things, that Justice Neil Gorsuch signed Alito's draft within 10 minutes of sending it. It also notes that Judge Amy Coney Barrett changed her vote to take the case before the court made its announcement in May 2021, citing “several court insiders and a written account.”

Clark wrote that “tradition and confidential deliberations about the Court [are] being destroyed before our very eyes.”

Ilya Shapiro, director of constitutional studies at the Manhattan Institute, said the article demonstrates “the most egregious leaks undermining the work of SCOTUS,” calling into question the suggestions it makes based on “misleading and dishonest framing.”

“For example, the libel that Alito improperly 'pre-shared' his draft friendly peer opinion, which is the focus of the piece, is belied several paragraphs later by acknowledging that 'selective preview' is a “Sacred” practice.” He wrote.

Center for Ethics and Public Policies Antonin Scalia Chair of Constitutional Studies Ed Whelen pointed out the bigger question is who on the Court is leaking to the NYT.

“As anyone working at the Court should recognize, leaking 'on condition of anonymity' violates the duty of confidentiality,” he said. he wrote in the National Review. “The fact that it makes it easier for the offender to escape detection does not remotely justify it.”

He also said he remains “skeptical that the sources are as balanced as [the article] might try to suggest and that they include anyone who supports the Dobbs majority.”

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