Leaks at the Supreme Court, what really matters? The leak or the decision?

This week, Supreme Court Chief Justice John Roberts ordered an investigation on how a draft decision of Dobbs v. Jackson Women’s Health Organization was leaked to Politico. This leak shows that five justices are preparing a judgment that would strike down Roe v. Wade, which first established the constitutional right to abortion.

Justice Roberts said the leak was “a singular and egregious breach,” and a “betrayal of the confidences of the Court.”

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Chief Justice Roberts said in a statement. “The work of the Court will not be affected in any way.”

But two researchers say that these sorts of leaks from the Supreme Court aren’t the issue.  It is the content of the decisions.

Nathan Carrington, a PhD candidate in political science at Syracuse University’s Maxwell School, and Logan Strother, an Assistant Professor of Political Science at Purdue University, wrote the paper (currently under peer review) “Plugging the Pipe? Evaluating the (Null) Effects of Leaks on Supreme Court Legitimacy.”

“The thread through our research is that it is the outcome of the case, not the leaked material, that will influence how the public views the court,” said Carrington. “If the leak harms the institution, it is because it overturns a popular decision not because it was leaked in advance.”

The paper, “Plugging the Pipe” directly addresses the Dobbs leak as well as other historical leaks such as Dred Scott deliberations and questionable extrajudicial activities taken by the justices, like Justice Fortas’s support for the Vietnam War.

From the paper:

“The data we present here offer no evidence that legitimacy (measured as diffuse support, support for court curbing, and felt obligation) is harmed by leaks, even if those leaks reveal information that the public views as unbecoming of Supreme Court justices. Contrary to some expectations in existing theories, we also find that the Court’s legitimacy is not enhanced by leaks. Instead, it seems that legitimacy afforded to the Court is unaffected.”

“Our research suggests that what matters is not whether the information is obtained via leaks or official channels but instead the substance of that information. In other words, it is the content that people respond to, not the manner by which the information made it to press. These findings have clear implications for the current public controversy surrounding the leak of the draft opinion in Dobbs: the public will react to that decision-based in large part on policy agreement with the Court’s decision to overturn Roe. Any impact the Politico story has on the Supreme Court’s legitimacy is not because of the leak per se but because of the content contained within the leak.”

To schedule an interview with the researchers, please contact Ellen James Mbuqe, executive director of media relations at Syracuse University, at ejmbuqe@syr.edu, or 412-496-0551.