SIOUX FALLS, S.D. (KELO) — The leak of a draft opinion from U.S. Supreme Court Justice Samuel Alito on case related to Roe vs. Wade, “is unprecedented,” said retired South Dakota Supreme Court Justice David Gilbertson.
The draft opinion is on Dobbs v. Jackson Women’s Health Organization and it would overturn Roe vs. Wade.
“You could call this historically, virtually nonexistent,” Gilbertson said of the leak of draft opinion on Monday, May 2.
Although some discussion opinions from the 1973 U.S. Supreme Court ruling on Roe vs. Wade were leaked, that happened after the court had made its ruling and announced it, said Neil Fulton, the dean of the University of South Dakota law school.
The deliberations of work of the U.S. Supreme Court considers for a ruling in a case are designed to be internal and secret, Fulton and Gilbertson said.
“Why do courts deliberate in private? Because we ask them to decide issues based on principle and not on public debate. Having the private opportunity to try out ideas and explore them and debate them before speaking through a final opinion is a better form of deliberation,” Fulton said.
Gilbertson stressed that while a draft opinion appears to overturn Roe vs. Wade, it is still draft opinion.
“Legally, it means nothing,” he said.
At this stage in the process the draft opinion could be different from the final opinion, Gilbertson said.
The Supreme Court is expected to release a final opinion in late June.
“There’s no good that come of it,” Gilbertson said of the leak.
The leaked draft opinion has already caused responses from various anti-abortion and abortion rights groups as well as lawmakers and governors. Gov. Kristi Noem announced in a social media account she’d call a special session if Roe vs. Wade were overturned.
“I don’t think that it’s helpful, and alas it’s never too early for political grandstanding,” Fulton said of responses that are at best, still speculative on the court’s final decision.
Gilbertson said the leak invites speculation and invites confusion.
“It draws additional attention to the court already deciding a case,” Gilbertson said.
Any comments that elevate the temperature of an incredibly complicated issue are not helpful, Fulton said.
The U.S. Supreme Court is a political body but it operates in a different political manner than other branches of government, Fulton said.
Yet, the public’s expectation that the court act as elected branches do, has intensified, Fulton said.
The leak could undermine the trust in the high court and lower courts, Fulton said.
“I think the things that concern me about the perception of legitimacy that people have such strong feelings about abortion pro or con, that partisians will fit any decision into their existing rubric about the issue,” Fulton said. “And so as a result, I think however this decision comes down, the people who don’t like it are going to denigrate it as an overtly political act.”
Chief Justice John Roberts has said the leak will be investigated.
“The fact that it was leaked is concerning but why did (someone) do it,” Gilbertson said.
And if something has happened once, “There is always the potential it could happen twice.”