Even as angry protestors take to the streets in some of America’s major cities, in conservative bastions like Alabama, a majority of engaged voters appear delighted that the U.S. Supreme Court appears poised to issue a ruling that would overturn the Court’s longstanding 1973 abortion decision in Roe v. Wade.
News that a draft of the Court’s apparent majority opinion had leaked on Monday sent instant political shockwaves across the country, and by Tuesday Chief Justice John Roberts had confirmed the draft’s authenticity and ordered an investigation into its premature public disclosure. Conservative Republicans have hailed the reversal as an overdue, morally correct move that returns a legislative matter to the states. Democratic leaders, including the President, meanwhile have decried it as a setback for women’s rights and a motivating factor in driving voter turnout for this fall’s general election.
With all the political furor over the draft’s potential implications, another aspect of the leak — the fact that the nation’s highest court appears to have sustained an unprecedented breach of trust from within — may also have far-reaching consequences. Cullman’s Gregory Nicholas, the presiding judge over Alabama’s 32nd Judicial Circuit that encompasses all of Cullman County, shared with Times on Wednesday his thoughts on how the leak may adversely affect the culture of the lone federal government branch that’s long been considered inviolate from the cutthroat political machinations characteristic of the two elected branches.
In terms of the ruling itself, it’s little surprise that most people in conservative areas like Cullman appear to be in favor of overturning Roe v. Wade. “I’d say probably 85 or 90 percent of [local] people are probably happy, while the other 10-15 percent are unhappy,” said Nicholas. But, he added, the leak of the draft (which was first reported by POLITICO) is “a very serious matter that will likely have long term effects on the way the United States Supreme Court operates in the future.
“The draft opinion itself is well reasoned and if it is ultimately released as the official majority opinion of the Supreme Court, it would be one of the biggest and most important decisions to come out of the high court in many decades,” said Nicholas. “I am concerned that the leak will have a chilling effect on the ability of the justices to freely exchange ideas about a case and to circulate draft opinions in the future.”
In federal and state election seasons, leaks of government information are often politically motivated; moves intended to rile a friendly voting base or discourage an opposing one. If influencing the Court majority’s final decision was similarly a motivating factor behind the Supreme Court leak, said Nicholas, the still-unknown party responsible for it may ultimately end up disappointed.
“I don’t think the justices will be intimidated or influenced by the criticism of pro-abortion politicians and activists,” he said. “The authors of the United States Constitution fashioned the Supreme Court to be as insulated as much as possible from political influences. Judges and justices can have different ideas regarding the meaning of the United States Constitution, but I think the justices strive to make decisions based on their interpretation of the law and not based on what is popular or politically expedient.
Nicholas added, though, that the sacrosanct and implicit privacy of the Court’s future deliberations could be imperiled if the majority Justices behind the draft opinion were to be somehow swayed by the visible and sharp public response that’s erupted on both sides.
“If the justices change their minds about reversing Roe v. Wade after the release of the draft order, that will create a dangerous precedent and would only encourage future leaks by individuals hoping to change a legal decision in a case,” he said. “That would be unacceptable and would undermine the legitimacy of the court.”
Nicholas’ reasoning on that point is simple: Justices on the Supreme Court need the liberty of deliberating in private and without outside influence; a serious intellectual freedom that stems from the Supreme Court remaining ensconced beyond the transitory, ever-churning turbulence of the broader political cycle.
“When I write an opinion as a trial judge, it’s not necessary for me to convince other judges that my opinion is the correct one since I make an initial decision in the case without input from other judges,” he explained. “But an appellate court is composed of several judges, and only a decision agreed to by majority of the judges sitting on the court will become the law. It’s important that appellate judges and justices have the freedom to exchange ideas about cases pending before their courts without the risk of their preliminary thoughts and ideas about the case being publicly disseminated before a final decision is reached.
“I am concerned that the trust that has historically existed among justices of the United States Supreme Court will now be eroded because someone having a political agenda chose to break a sacred trust and released a draft opinion of a decision in a pending case.”