Unless and until proven otherwise, we must assume that the outrageous leak of a draft Supreme Court opinion in the Mississippi abortion case, Dobbs v. Jackson Women’s Health, is an attempt to intimidate the justices by inciting the radical left. It must be investigated by the FBI as a potential crime.

The Court’s longstanding norms and protocols impose a duty of confidentiality on the justices, their clerks and staff, and the contractors who support the Court’s work. Obviously, norms and protocols, unless they are codified as statutes, or at least accepted as contractual obligations, stand in tension with free speech principles. They are thus difficult to enforce.

There is, however, more at issue here than tradition and standards, important as those are. The justices are judicial officers of the United States. Their clerks and staff are government employees. 

The draft opinions circulated among the justices’ chambers are government records. They belong to the United States. They are not the personal property of the officials who generate them, and those officials are thus not free to convert them to their own use or disseminate them without authorization outside the Court’s established procedures.