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What Supreme Court Justices have said about 'Roe v. Wade' and the draft opinion leak

ADRIAN FLORIDO, HOST:

Nina Totenberg has covered the court for decades and knows it better than anyone. And she's here now to walk us through what happened. Hi, Nina.

NINA TOTENBERG, BYLINE: Hi there.

FLORIDO: Nina, Chief Justice John Roberts weighed in on the leaked draft today. What did he say?

TOTENBERG: Well, he confirmed the authenticity of the draft opinion written by Justice Samuel Alito, though Roberts notes it does not represent the court's final position or even the final position of any justice. He said this was a singular betrayal of the court's confidences, and he said he's ordered the court martial to conduct an investigation to find out who's responsible.

Now, as luck would have it, I had a long-scheduled interview today with Justice Stephen Breyer at the Federal Judges Association meeting. And, of course, I asked him about all of this. I got bupkis, zilch, nada. So I think it's likely from here on, whatever the court does about this behind the scenes - and I think its options are pretty limited - whatever they do, we will not know about it.

FLORIDO: Well, as you mentioned, they presumably would like to find out who did this. They're investigating it. How many people in the court had access to this document?

TOTENBERG: Well, compared to the Pentagon, not a lot, but enough. In addition to the justices, there are some 37 law clerks plus professional staff, police and all the folks who maintain the building. So if someone just took a copy or printed out a copy and sent it anonymously to Politico, it could be very tough to figure out who did this. And the marshal's office isn't an investigative service. It's a protective service.

And then there's the question of how to proceed from here. I suppose the chief might suggest to his colleagues that they each designate a single law clerk and limit future drafts, at least in this case, to those nine clerks, but that's not how most of these chambers function. The law clerks are the justices' sounding boards, debaters. And I'm not at all sure that they would agree to that.

FLORIDO: Well, the legal world more broadly seems very upset by this leak, too. Why is this such a big deal?

TOTENBERG: Because it's a huge breach of trust. The justices operate like nine tiny little law firms, and they respect each other's confidences, and they trust not only their clerks, but other justices' clerks as well. This is a total betrayal, sort of like a partner in a marriage cheating on the other partner, except that it's never, ever happened like this before, at least going back over 100 years. Yes, there have been tiny leaks, like about a changed vote, for instance, but even those leaks you can count on one hand. This was an entire draft opinion, 98 pages, 118 footnotes with seeds planted all over the place to undo other precedents.

FLORIDO: Well, according to Politico, all three of President Trump's nominees to the court seemed inclined to sign on to this draft opinion. So what are we to make of the fact that this draft opinion reverses a half century of law?

TOTENBERG: You know that confirmation hearings have devolved into an exercise in futility, for the most part. Some nominees really don't tell you much, but I think it's fair to say that some other nominees have walked the line less artfully, to the point of being a bit misleading. Here, for example, is then-judge Kavanaugh answering a question about Roe and the court's other opinions on abortion.

(SOUNDBITE OF ARCHIVED RECORDING)

BRETT KAVANAUGH: Senator, I said that it's settled as a precedent of the Supreme Court. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years.

TOTENBERG: And then there was then-judge Gorsuch, who, in a book he wrote about assisted suicide, said that the intentional taking of human life by private persons is always wrong. Senator Durbin asked him how he could square that statement with legal abortion.

(SOUNDBITE OF ARCHIVED RECORDING)

NEIL GORSUCH: The Supreme Court of the United States has held in Roe vs. Wade that a fetus is not a person for purposes of the 14th Amendment.

DICK DURBIN: Do you accept that?

GORSUCH: That's the law of the land. I accept the law of the land, Senator. Yes.

TOTENBERG: And here's then-judge Barrett at her confirmation hearing.

(SOUNDBITE OF ARCHIVED RECORDING)

AMY CONEY BARRETT: I don't have any agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come.

TOTENBERG: So call it political, call it something else, but what this portends is not just an adjustment at the court, I think, but a seismic shift and a perhaps a seismic shift in other ways as well.

FLORIDO: NPR legal affairs correspondent Nina Totenberg. Thanks, Nina.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.