Will the leaked draft opinion harm confidence in the Supreme Court?



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The leaked draft of a Supreme Court opinion that would strike down Roe vs. Wade hurt American public opinion about the Court? While most of the media coverage has focused on the substance of the notice, some has focused on the very unusual to run away. Some lawyers, pundits and politicians argued that the leak undermined the court’s legitimacy.

But do the leaks really harm the court’s public image? Our research suggests that what matters is the substance of the leak, not the leak itself. If the Politico leak affects how Americans view the court, it will be because the leaked ruling is unpopular, not because it was leaked.

How did people react to the Supreme Court leak?

People who work in court do so under a strict standard of lifetime confidentiality. Because of this, the leak was widely condemned.

Chief Justice John G. Roberts Jr. called the leak “absolutely appalling.” The Supreme Court issued a press release calling the leak “a betrayal of the court’s confidences.” Sen. Mitch McConnell (R-Ky.) accused the leaker of trying to influence the court’s final decision in the case.

Due to secrecy standards, court leaks are rare, but not unheard of. The last notable leak was, perhaps ironically, the result of Roe v. Wade; there were additional leaks in the Dobbs cases since the history of Politico. Even so, the Politico leak was by far the most high-profile leak in the court’s modern history and certainly in the internet age.

With each leak, people speculate about its effect on the ground. After leaks on CNN in 2019, law professor Dan Epps argued that the leaks were good because current secrecy standards go too far and no longer serve the public good. In contrast, Josh Blackman, another law professor, argued that the chief justice should resign if he is unable to stop the leaks.

To see how the leaks might influence support in court, we conducted a survey experiment in the fall of 2021, using an internet-based nonprobability sample of 800 respondents provided by polling firm Lucid. Although optional, this quota sampling produces a representative sample of the nation based on age, gender identity, racial identity, household income, level of education, political partisanship and geographic region.

We used the 2020 LGBT adoption case Fulton vs. Philadelphia to see if the information leak influenced public support for the court. In that case, a unanimous court ruled that the city of Philadelphia violated the First Amendment rights — specifically, the free exercise of religion — of a Catholic adoption agency when the city withheld government funding because the agency refused to place adoptive children with same-sex couples.

In our experiment, we first asked respondents, “In some states, there is debate about whether religiously-affiliated adoption agencies should be able to use their religious beliefs to determine which families are eligible. to adopt children. Do you support or oppose faith-affiliated adoption agencies refusing to place children with qualified same-sex couples?”

Afterwards, the survey participants read a short report that reported the outcome of the case. Half of our participants also read a fictitious paragraph saying that an anonymous leak revealed that the court’s unanimous decision was made because, behind the scenes, some judges had strategically negotiated with others.

Our study allows us to compare the opinions of those who read the ruling itself with the opinions of those who read the ruling and a Supreme Court leak.

Protests for abortion rights were peaceful. Will this change?

To see if there was an effect, we looked at whether reading the leak influenced respondents’ willingness to support policies such as term limits on the Supreme Court, mandatory retirement age for judges and enlargement of the yard. Political scientists often use opinion on these policies—collectively referred to as the “court cut”—to gauge support for the court. The idea is that those who view the court favorably should be less willing to approve of the change. Responses to each question were added to form a scale with higher values ​​indicating more support for the yard.

We find that the leak does not matter. Among those who read the report that included the leak, average support in court was 44%; among those who roughly read the decision, support was 43%. People who were informed of a leak were just as likely to support change as those who simply talked about the outcome of the case.

What mattered, however, was whether people agreed with the court’s actual decision. Those who disagreed were more than 10 percentage points more likely to support changing the court than those who agreed (39% versus 52%). This discrepancy was the same whether they learned of the decision from an article containing information about a leak.

For Dobbs, that means that if the steady stream of leaks harms Americans’ belief in the Court’s legitimacy, it will be because the reversal deer is unpopular, not because Judge Samuel A. Alito Jr.’s draft opinion was leaked. Our findings suggest that those concerned about the negative effects of the leaks on public opinion of the court, including the chief justice, may have misplaced their concerns.

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Nathan T. Carrington (@NateCarrington) is a doctoral candidate in political science at the Maxwell School of Syracuse University and a research associate at the Campbell Public Affairs Institute.

LoganStrother (@Logan RStrother) is an assistant professor of political science at Purdue University.

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