NASHVILLE, Tenn. (WKRN) – We’re hearing from a Vanderbilt University law professor who was once part of the inner circle at the high court that’s now at the center of a major probe about an opinion leak. An investigation is underway at the Supreme Court of the United States as tempers flared on both sides about a leaked draft opinion that shows the justices may be ready to strike down the Roe v. Wade decision that legalized abortion.
“I was pretty much disgusted was my second reaction after I realized it was a true leak of an opinion. As far as I know, an opinion has never been leaked, before it was released to the public and so this is a major breach of the ethics that law clerks are supposed to abide by at the Supreme Court,” said Brian Fitzpatrick, Milton R. Underwood Chair and Free Enterprise and Professor of Law at Vanderbilt University.
Monday evening, Politico published a draft of an opinion in a major abortion case that was argued in the fall. The document indicates the court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide.
On Tuesday, in a statement, the court confirmed the draft’s authenticity, though it cautioned that the document “does not represent a decision by the Court or the final position of any member on the issues in the case.” Chief Justice John Roberts ordered an investigation into the leak’s source.
Fitzpatrick clerked for Justice Antonin Scalia and said justices work differently with their law clerks but there are many commonalities.
“The law clerks are basically just Junior Varsity justices in the way that they help their justices, draft opinions and get ready for arguments,” Fitzpatrick said. “So they have pretty much unlimited access.”
He explained that law clerks are almost without exception, recent law school graduates between 25 and 30 years old and are top students from the country’s best law schools. They help the justices prepare for oral arguments, and they help them write the opinions. He says different justices do it in different ways but Justice Scalia, for example, typically asked the law clerk to write the first draft of the opinion.
“Before the oral argument, the law clerk will research the case and provide a memo to the justice and the justice will use that memo to decide what questions to ask at the oral argument. After the oral argument and the justices vote on what they want to do in the case, they will go back to their chambers,” Fitzpatrick explained. “If they’ve been assigned the opinion, they will ask one of their law clerks to help them write the opinion.”
He added that the Justice has to tell the law clerk what happened at the vote during the conference that’s called among the nine justices so the law clerk knows how to write the opinion.
“The law clerk will be privy to memos that go back and forth between the justices when they’re talking about a draft opinion that’s been circulated because the law clerks are going to have to revise the opinion, in accordance with what these memos going back and forth between the justices say,” he said.
Fitzpatrick believes this leak is something of a game-changer in that it’s unprecedented and could lead to changes for justices and law clerks on the high court.
“Now everyone is going to be worried about it happening again and I think it’s going to change how justices hire law clerks,” said Fitzpatrick. “I think it may change the relationship between the justice and the law clerk.”