A group of 12 House Republicans introduced a proposal in Congress this week that would make knowingly sharing confidential information from the Supreme Court a crime punishable by a fine or as many as five years in prison.
The legislation comes a month after a leaked draft majority opinion indicated the Supreme Court was preparing to overturn Roe v. Wade, the seminal 1973 precedent that federalized abortion policy, overriding the states and making the procedure lawful throughout the entire United States. The landmark 7–2 decision held that a woman’s right to an abortion was safeguarded by her right to privacy under the 14th Amendment. Politico published the draft decision written by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization on May 2.
Left-wing critics are outraged that the high court is considering overturning Roe v. Wade, while conservatives are angered that the leak, perpetrated by a person or persons still unknown, appeared calculated to inflame public opinion and persuade the justices to reconsider reversing the 49-year-old abortion precedent. Some have argued that the unprecedented leak of the full opinion is a kind of terrorist attack on the judicial branch of the federal government.
“The unauthorized leak of the draft opinion in Dobbs v. Jackson Women’s Health constitutes a grave breach of judicial ethics and a deliberate attack on the independence of the Supreme Court,” Johnson said in a statement.
“This legislation is now, unfortunately, a necessary step to discourage future such attempts to intimidate justices during their deliberative process and restore independence to the Court so that it can ensure the American people are afforded equal and impartial justice under the law.
“The institution of the court has been damaged and we must do what we can to try to repair it,” he said.
The bill states that any officer or employee of the Supreme Court who is engaged in “knowingly publishing, divulging, disclosing, or making known in any manner or to any extent not authorized by law any confidential information coming to that officer or employee in the course of the employment or official duties of that officer or employee shall be imprisoned not more than 5 years or fined ... or both.”
The measure defines confidential information as including “internal notes on cases heard by the Supreme Court, any communication between a Justice of the Supreme Court and an employee or officer of the Supreme Court or communication between officers and employees of the Supreme Court on a matter pending before the Supreme Court, a draft opinion, a final opinion prior to the date on which such opinion is released to the public, personal information of a Justice of the Supreme Court that is not otherwise legally available to the public, and any other information designated to be confidential by the Chief Justice of the Supreme Court.”
Supreme Court law clerks, who assist the court’s nine justices, have been asked by court investigators to produce personal cellphone records and swear affidavits. Some clerks are reportedly considering retaining outside legal counsel to safeguard their legal rights, according to CNN.
A legal expert consulted by The Epoch Times said the proposed Leaker Accountability Act seems like a good idea.
Curt Levey, president of the Committee for Justice, said in an interview that federal laws already prevent employees in the government’s executive branch from leaking certain information.
“Why should that not apply to [Supreme Court] clerks as well?”
The leak has “shaken the collegiality of the court and trust in the court,” Levey said. This bill “could definitely restore that.”
“I would definitely think [the bill is] a step in the right direction,” Levey said, adding he hoped it would enjoy bipartisan support.
“I know that there’s plenty of people on the left who consider the leaker to be a hero,” but they should realize “the next leak could come from a conservative clerk, assuming this one came from a clerk.”
“Everyone really does have a stake in the legitimacy of the Supreme Court. I know the left doesn’t feel that way, but just think about all the Supreme Court rulings that the left cherishes that may not have been adhered to if people didn’t consider the Supreme Court legitimate.”
“This is not a conservative or liberal bill,” Levey said. “It’s common sense.”
Levey’s nonprofit describes itself as “devoted to restoring the Founders’ vision of a federal judiciary governed by the rule of law and anchored by the Constitution.”
It’s unclear when the high court will release its decision in Dobbs v. Jackson Women’s Health Organization. At issue is Mississippi’s Gestational Age Act, which allows abortions after 15 weeks’ gestation only for medical emergencies or severe fetal abnormality. Citing Roe v. Wade, lower courts held that the state statute was unconstitutional.
Oral arguments in the Dobbs case were heard by the Supreme Court on Dec. 1, 2021.
