CNN’s Toobin: SCOTUS Leak a ‘Shattering Experience,’ ‘Don’t Know How or if the Institution Is Going to Recover’

Immediately following a Politico report that the U.S. Supreme Court was poised to overturn a decades-old landmark abortion ruling, Roe v. Wade, CNN legal analyst Jeffrey Toobin warned how the draft came to light, which was through a leak, would have a lasting impact on the institution.

Toobin told CNN host Anderson Cooper the leak was a “shattering experience,” and he was not sure “how or if the institution” will recover.

“Well, again, this is how it works, is that the Supreme Court hears arguments, usually Monday, Tuesday, Wednesday, or some combination, thereof,” he said. “And then, on Friday, they have their conference, which is the super-secret meeting, of the nine justices, in the Chief Justice’s conference room. No one is allowed in that room. Only the justices sit that – are around the table. And they take what’s called a draft, a – they take a vote. But it’s not a permanent vote. It’s a tentative vote, on the elect – on what the results of the case is. Based on the result, in that case – of the tentative vote, on that Friday, the Chief Justice, or the Senior Associate Justice, in the majority, then assigns the opinion to one member of the majority. The Chief Justice could assign it to himself. If this is the split in the court, the Senior Associate Justice would have been Clarence Thomas. He’s now the Senior Associate Justice if Chief Justice Roberts is in dissent.”

“So Chief Justice – Justice Thomas, would here have assigned the opinion to Justice Alito, to write the opinion, for the majority,” Toobin continued. “He then would have prepared a draft, and that’s what it appears this is that was leaked to Politico. That is then circulated among the nine justices. And the justices in the majority get to comment on it and say, “Well, I would change this. I would change that.” And then, the four dissenters decide, are they going to write a single dissenting opinion or are they going to write separate dissenting opinions. But this circulation process, it often takes months, especially with high-profile cases. I mean, this case was argued, in the fall, this Hobbs case, from Mississippi. And it’s not surprising that it’s taken all these months to be resolved. But I can’t emphasize enough — as someone, who has covered this court for 30 years, who’s written two books on the Court, there has never been a leak anything like this. There’s never been a leak of a vote, much less an actual opinion, much less in a case of this significance.”

“It’s really going to be an interesting question, putting aside so much about, what this means for the institution of the Supreme Court, what it means for the respect that the justices and the Court’s decisions are held,” he added. “The idea that a decision of this magnitude could leak is really a shattering experience for the justices and the Court. And I really don’t know how well the institution is going to recover.”

Follow Jeff Poor on Twitter @jeff_poor