(NewsNation) —The shocking and unprecedented leak of a Supreme Court draft decision to overturn abortion law Roe v. Wade, which was made public by Politico on Monday night, will have a “monumental” impact on the court’s reputation, experts say.
The leak may be a first of its kind for the nation’s highest court, but is far from the first time major government documents have been leaked to the press. Leaks of documents in the Watergate scandal and the Pentagon Papers have rocked D.C. in the past.
What makes the Supreme Court leak different, however, is that the court is supposed to be above the partisan politics and leaks that are so common in Washington, D.C. That makes a leak such as this entirely unprecedented for the court.
“Unquestionably, it drags the court into the political scrum and rubs some of the polish off it,” Washington Post columnist George Will told NewsNation on Tuesday. “The Supreme Court has no power of the sword, no power of the purse, it has only the power of its persuasiveness, it has only the power of its prestige and that is fragile, that is perishable.”
Monday night’s leak of a draft opinion written by Justice Samuel Alito calling for Roe v. Wade to be overturned, sent the media into a frenzy and has lawmakers from both parties across the nation trading jabs as rhetoric around abortion rights burns red hot.
Politico says it obtained the document from someone “familiar with the court’s proceedings” and on Tuesday, Chief Justice John Roberts confirmed the draft’s authenticity.
Roberts called the leak of the document a “betrayal” of confidence in the court and vowed there would be an investigation into the leak’s origins.
“The chief justice is extremely sensitive to the fact that the Supreme Court does not want to become a political football and I imagine he is incandescent with rage over this leak that has undermined so much of what he has tried to do to keep the Supreme Court above the fray,” Will said.
Will said the leak has “short-circuited” the court’s process and believes we will soon find out who leaked the document to Politico.
“I’m pretty sure we will, it’s very hard to keep a secret in Washington,” Will said. “There’s a fairly small number of people who could have done this. So you have a question of who has a motive, who has an opportunity, and it gets down to a pretty small group of people.”
However, in cases like Watergate, it took decades to unravel the sources of the pivotal information.
“Deep Throat” the alias of the Washington Post’s source that fed them the information needed to bring down President Richard Nixon for his role in the break-in at the Watergate Hotel, did not have his identity revealed as Assistant FBI Director Mark Felt for decades.
Felt’s identity as Deep Throat remined a secret for more than 30 years after the Watergate scandal. He eventually came forward in a Vanity Fair article in 2005.
Will said the Supreme Court leak appears worse than the Watergate leak, at the moment, because of it’s rare nature and impact it will have on the operation of the court.
“In a way it’s worse because this appears at a moment when the opinion itself is not finished, it’s being negotiated,” Will said. “The negotiation is the way by which various justices move the opinion and condition the terms of the opinion in order to get their vote.”
“It’s hard to see how you go back and resume the negotiation when a very detailed, 60-some page, not counting the appendices, 60-some pages of opinion have been carefully written and published,” Will added.
The crimes committed in the Watergate scandal, which included operators for President Richard Nixon’s campaign breaking into the Watergate Hotel to steal information from Democrats and bug their rooms, ultimately led to criminal charges being filed.
Will was not sure if this Supreme Court leak would lead to criminal charges.
“It’s a little bit different because Watergate was a crime itself,” Will said. “I don’t know whether there is a crime here involved, I do know that people who become clerks in the Supreme Court sign a very demanding, very specific, very rigorous contract and someone has betrayed this contract.”
In the case of the Pentagon Papers, a trove of highly classified government documents detailing U.S. involvement in the Vietnam War, a former State Department employee who worked on the creating the documents, Daniel Ellsberg, leaked the papers to the New York Times in 1971.
Ellsberg believed the papers showed the war in Vietnam was unwinnable and the American public needed to know.
An infamous Supreme Court case, New York Times Co. v. United States, played out, with the court ultimately deciding the government had no right to stop the press from publicizing the papers.
Ellsberg meanwhile was charged with violating the Espionage Act and faced up to 115 years in prison for leaking the papers. All charges were eventually dropped because of government misconduct, which included the same people who broke into the Watergate Hotel, breaking into Ellsberg’s office.