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Professor Stephen Wermiel

Professor Stephen Wermiel, Constitutional Law Expert, Comments on the Historic Leaked Supreme Court Draft Opinion and its Implications

A leaked Supreme Court draft majority opinion obtained by Politico  strikes down Roe v. Wade, throwing the legality of abortion enshrined in federal law into question. While the decision itself has caused major waves and will likely face fierce opposition, the leaked draft opinion marks a historic moment for the sanctity and privacy of the decisions made within SCOTUS.

Professor Stephen Wermiel, Professor of Practice in Constitutional Law at American University Washington College of Law and co-author of Justice Brennan: Liberal Champion, commented in several media outlets on the leaked draft opinion and its expected impacts on the Supreme Court’s internal operations. Below are some key takeaways.

Confidentiality is Critical

While a select few academic researchers are granted access to justices’ files, typically after their retirement or death, the terms of these agreements are often secret and undisclosed. Supreme Court draft opinions are never seen. Speaking to POLITICO, Professor Wermiel said that confidentiality during the deliberation period is critical to maintaining the “high court’s operation and collegiality.”

“They think it will chill their deliberation with one another and their candor and willingness to be open in exchange of views,” Wermiel said. In only three instances since 1972 has a draft opinion been leaked or disclosed before a final opinion has been released, highlighting the extraordinary measures taken to maintain confidentiality.

Broken Trust May Lead to New Security Measures

While most government agencies rely on high-tech security tools to safeguard sensitive documents, the Supreme Court is one of the last institutions to rely on trust within its small circle of people. In an interview with Bloomberg Law, Professor Wermiel said the security systems in place include “using two distinct computer systems, one internal and one external, to try to prevent private communications or draft opinions from becoming public.” But these security measures fall short of the comprehensive security needed to protect the court’s work.

“This is an institution that operates on trust,” he said. “Security derives from the notion that there is good faith and trust in place.” This leak may catalyze new security measures to be put in place to safeguard the highly confidential draft opinions and other work done in the Supreme Court.

The End of a Roberts Court?

Chief Justice John Roberts has long been the deeply conservative yet fundamentally institutionalist swing vote. With five ultra-conservative justices now in place, Chief Justice Roberts’ vote is no longer the driving force in what may turn into a series of conservative decisions by the court, beginning with striking down Roe v. Wade. This is new territory for the court, where Chief Justice Roberts has been in favor of the incrementalist approach to changing the laws of the land.

Speaking to the Boston Globe, Professor Stephen Wermiel remarked that “Roberts as a swing vote is the most conservative swing vote in anybody’s memory,” he said, “Maybe in a hundred years. And if his vote is no longer decisive because it’s not needed, then we really are looking at an incredibly conservative court.”

Professor Wermiel’s media appearances can be found here:

Politico: How rare is a Supreme Court breach? Very rare

Bloomberg Law: Supreme Court Leak Prompts New Look at Old Way of Doing Business

Boston Globe: A new conservative majority poised to overturn Roe could spell the end of the Roberts court

New York Post: Leaker of Alito’s draft opinion could face criminal prosecution: legal experts