Politico earlier this month published a draft majority opinion of the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization. The draft reverses the landmark Roe v. Wade decision, which found a federal constitutional right to an abortion based on the right to privacy. The resulting media frenzy and political explosion proves exactly why the leak of such opinions and the inner workings of courts has an extremely corrosive effect on American constitutional jurisprudence and gravely threatens the rule of law.
Remember that the United States Constitution establishes three branches of government: legislative (Congress and state legislature), executive (president and governor), and judicial (federal and state courts). The legislature makes the law; the executive enforces the law; and the judiciary interprets the law and applies it fairly to resolve disputes.
Only by maintaining the three branches can we preserve freedom. James Madison observed that separation of powers was “a first principle of free government,” and that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or selective, may justly be pronounced the very definition of tyranny.”
Moreover, when a conflict exists between the Constitution and a law, the Constitution must prevail. The Constitution is the supreme law of the land reflecting the sovereign will of the people. Under the separation of powers, the judiciary has the authority and duty to strike down unconstitutional laws. As Alexander Hamilton reflected, “Without this, all the reservations of particular rights or privileges would amount to nothing.” The courts are the palladium of liberty, the rule of law, and the Constitution.
To properly fulfill this role, legal decisions must be based solely on the facts set forth on the record, the arguments presented by parties, and the law as promulgated by the people and legislature. These constraints are essential to ensuring that courts act as courts—and protect the rule of law and separation of powers.
To ensure that courts reach the right result, their decision-making process must be shielded from public exposure until finalized. They must have an unfettered freedom to examine, probe, test, evaluate, argue, and discuss legal controversies. They must be free to refine their positions and change preliminary decisions.
As a circuit court judge for more than 19 years, I have often written draft decisions which I have materially revised—sometimes completely changing the outcome of my decisions.
When preliminary drafts of court opinions are exposed to public scrutiny, all of the protections of ensuring well grounded and faithful decisions come under attack. The leak of the Dobbs opinion has engendered tremendous political, cultural, and media pressure on the Supreme Court. Protests have swamped the Supreme Court building. Protesting at the homes of individual justices has been routine. Political leaders of the highest order have relentlessly attacked the draft. Schemes of packing the courts and other not-so-subtle threats have come raining down.
But under our system, legal decisions must not be influenced by facts not in the record, arguments never made, or a desire to change or ignore the law. Judicial decisions should be determined by the law, not political pressure and pundits. Legal opinions must adhere to the record and arguments, not be cowed by threats and protests. Judicial review is not a popularity contest. Law determined by mob is no law at all. This is why, regardless of anyone’s particular feelings on the merits of the Dobbs draft, its premature release is a grave threat to our republic and must never happen again.