Regardless of what you think of the decision itself, the leak of a draft Supreme Court decision should be terribly troubling to you if you’re an American citizen who truly cares about the rule of law and the stability of our democracy.

For the most part, government secrecy at any level except for national security and very, very serious personnel issues is completely unnecessary. I’ve pointed out repeatedly – even with experience working in the Legislature – that there’s absolutely no reason for state budget discussions to be held between the two parties in private. The argument that those deliberations require a shield of secrecy is nonsense; that’s really just an excuse for politicians to hide their real views from the public. Often, you’ll see politicians deviate from their supposed public positions in private: Republicans will admit that yes, we need to raise taxes, and Democrats might admit that in fact they need to cut spending once in a while.

What a shocking scandal.

Here in Maine, these discussions that occur under the dome are protected by what politicians and reporters alike call the “working papers” provision: the idea that draft documents and memos ought not to be subject to the full scope of public scrutiny. That’s because it’s a chance for legislators, and their aides, to toss around ideas without the fear that they might end up on the front pages. Again, even as one of the most extreme advocates for public transparency in the state, I mostly agree with this concept: Elected officials and their staff ought to be able to discuss things bluntly without the fear that every word will be reprinted publicly. Unfortunately, the overuse of this provision has led the public to, rightly, view it with suspicion.

The proper functioning of our democracy depends on a certain level of discretion (though not secrecy; there’s a difference) at all levels of government. Staffers for either party should not go running to reporters the minute their boss drafts a memo, and if reporters do receive such a document, they ought to give elected officials a chance to respond before they publish it. Sadly, such decorum – which was antiquated long before this leak – has completely left us now.

So, of course, a Supreme Court decision as monumental as one overturning Roe v. Wade – even if, unfortunately, it does become the majority opinion – was leaked before it was issued. To be clear, as a pro-choice Republican, while I don’t entirely disagree with this opinion, I won’t cheer it, either.


Although the Supreme Court should have left the ultimate decision of whether to legalize abortion up to the state legislatures, nearly 50 years ago they decided otherwise. And we’ve lived under the structure of that decision for nearly 50 years, and for nearly 50 years, that decision has actually worked relatively well as a framework for society. There may have been a time when it would have been wise to overturn Roe, but that point has long since sailed past us. The better option would be a more focused decision that both kept the Supreme Court balanced and somehow found a way to at least narrowly preserve the right to choose.

Still, far from divorcing the issue from public opinion as Alito hoped in his draft opinion, this decision would only further divide us further. It might be nice to think that devolving the issue to the states would remove it from federal races, and while that might be true, it only further emphasizes it in local ones. The days of conservative Democrats claiming to be pro-life while largely leaving the issue alone during their campaign are largely past; the same is true of pro-choice Republicans.

However, the leak itself reveals the hypocrisy of the left, who used to regularly bemoan the last administration’s attacks on democracy while proclaiming that they would do better. The leak of the draft proves that isn’t true: Liberals largely praised it, even though it eroded public confidence in our institutions. That’s a shame, as all three branches of our government deserve equal respect from both parties.

If liberals were serious about defending the sanctity of American democracy, then they would denounce this leak. Regardless of the motives, it hurts our country, and we hardly need anything else to divide us in this day and age. So Republicans are right to focus on the leak before a decision is made, while Democrats are hypocritical in the extreme to ignore it for partisan advantage.

Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at:
[email protected]
Twitter: @jimfossel

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