Did the leaked draft of a Supreme Court opinion that would overturn Roe v. Wade hurt American public opinion about the court? While most media coverage focused on the substance of the opinion, some focused on the highly unusual leak. Some lawyers, pundits and politicians argued that the leak was a blow to court legitimacy.
But do leaks actually harm the court’s public standing? 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 decision leaked is unpopular, not because it was leaked.
How did people react to the Supreme Court leak?
People who work at the court do so under a strict norm of lifetime confidentiality. For this reason, the leak was widely condemned.
Chief Justice John G. Roberts Jr. called the leak “absolutely appalling.” The Supreme Court issued a news release calling the leak a “betrayal of the confidences of the Court.” Sen. Mitch McConnell (R-Ky.) accused the leaker of attempting to influence the court’s final decision in the case.
Because of the norms of secrecy, leaks from the court are rare, although not unheard of. The last notable leak was, perhaps ironically, the outcome of Roe v. Wade; there have been additional leaks in the Dobbs case since the Politico story. Even so, the Politico leak was by far the highest-profile leak in the court’s modern history and certainly in the era of the Internet.
With every leak, people speculate about its effect on the court. After leaks to CNN in 2019, law professor Dan Epps argued that leaks were good because current norms of secrecy 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 put an end to the leaks.
How we did our research
To see how leaks might influence support for the court, we conducted a survey experiment in the fall of 2021, using an Internet-based nonprobability sample of 800 respondents provided by the survey firm Lucid. While it is opt-in, this quota sampling produces a sample representative of the nation based on age, gender identity, racial identity, household income, educational attainment, political partisanship and geographic region.
We used the 2020 LGBT adoption case Fulton v. Philadelphia to see whether leaking information influenced public support for the court. In that case, a unanimous court ruled that the city of Philadelphia had violated the First Amendment rights — specifically, of the free exercise of religion — of a Catholic adoption agency when the city withheld government funding because the agency refused to place foster children with same-sex couples.
In our experiment, we first asked respondents, “In some states, there is a debate over 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 allowing religiously affiliated adoption agencies to refuse to place children with qualified same-sex couples?”
Next, we had survey participants read a short news story that reported the outcome of the case. Half of our participants also read a fictional paragraph saying that an anonymous leak had revealed that the court’s unanimous decision was reached because, behind the scenes, some justices had strategically bargained with the others.
Our study allows us to compare the opinions of those who read about the decision itself with the opinions of those who read about the decision and a Supreme Court leak.
Do leaks really matter?
To see whether there was an effect, we looked at whether reading about the leak influenced respondents’ willingness to support policies like Supreme Court term limits, mandatory retirement ages for the justices and expanding the court. Political scientists often use opinion about such policies — collectively referred to as “court curbing” — to assess support for the court. The idea is that those who view the court favorably should be less willing to endorse measures that would change the structure of the court. Responses to each question were added to form a scale with higher values indicating more support for the court.
We find that the leak doesn’t matter. Among those who read the news story that included the leak, average support for the court was 44 percent; among those who read just about the decision, support was 43 percent. People told about a leak were just as likely to support changing the court’s structure as those who simply were told about the case’s outcome.
What did matter, though, was whether people agreed with the court’s actual decision. Those who disagreed were more than 10 percentage points more likely to support various ways to overhaul the court than those who agreed (39 percent to 52 percent). This gap was the same whether they learned about the decision from a story that included information about a leak.
For Dobbs, this means that if the steady stream of leaks hurts Americans’ belief in the court’s legitimacy, it will be because overturning Roe is unpopular, not because Justice Samuel A. Alito Jr.’s draft opinion leaked. Our results suggests that those worried about the negative effects of leaks on public views of the court, including the chief justice, may have misplaced their concerns.