Josh Dunn

Josh Dunn, University of Colorado at Colorado Springs professor, chair of the political science department and director of the Center for the Study of Government and the Individual. (Courtesy photo)

With the most significant leak of United States Supreme Court doings confirmed, the most pressing questions now are who did it and why?

Chief Justice John Roberts said Tuesday that a leaked draft opinion from February indicating a majority of the nine justices supported overturning the 1973 Roe v. Wade decision that legalized abortion nationwide is authentic.

The political media outlet Politico obtained the document and released it Monday night, producing street demonstrations and a call from Roberts on Tuesday for an investigation.

The most common speculation — which University of Colorado at Colorado Springs political science professor and chair Josh Dunn believes is correct — is that the culprit is a court clerk to liberal-leaning justices, who were angry about the direction the court was heading.

Dunn, also director of the Center for the Study of Government and the Individual at UCCS, thinks that’s the most likely explanation.

“It’s less likely for a conservative clerk to have leaked it because it’s more difficult to figure out how it works to their advantage,” he said.

If the individual or people who orchestrated the leak turn out to be working for left-leaning justices and did it to either change the outcome or convince a wavering conservative-leaning justice to change their vote, Dunn thinks the strategy will backfire.

“It’s a huge violation of trust with the Supreme Court, and it’s going to take time for the Supreme Court to work through this,” he said.

“The justices don’t like this attempt to manipulate them and stoke the outcome.”

In fact, the public outcry that’s ensued could “stiffen the resolve” because justices do not want to say they capitulated to public pressure.

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“Their job as justices is not to follow public opinion but to accurately apply the law as they see it,” Dunn said.

While there have been leaks in the past, none has been this significant, the professor said.

Supreme Court clerks take an oath of silence, he said, and are not allowed to discuss cases.

“They are ex-communicated when they do so,” Dunn said, since they’re viewed as people who want to “destroy the institution.”

“The justices do take seriously their ability to discuss these cases candidly and not have their deliberations aired in public because, after all, sometimes they do change their votes.”

That happened 30 years ago, when the U.S. Supreme Court nearly reversed Roe v. Wade in the Planned Parenthood v. Casey case. But some justices changed their mind between the initial vote and the time the court actually announced its opinion, Dunn said.

Seated justices have been expected to announce in late June a ruling on the current case challenging a Mississippi ban on abortion after 15 weeks of gestation, as the term ends. Such a decision would hand over abortion laws to states.

With the leak, it’s possible the justices would move up the date of releasing a ruling, Dunn said.

“If they find someone has done this to manipulate them, they could say we’ll just announce the decision now,” he said.

Contact the writer: 719-476-1656.