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SU Professors weigh in on institutional, privacy implications of leaked Supreme Court draft opinion

U.S. Supreme Court
The U.S. Supreme Court building in Washington, D.C. is easily distinguished by the large columns at its entrance.

The leaked draft majority opinion hung over the justices as they gathered privately for the first time since the news of the vote to overturn Roe V. Wade sent shockwaves across the nation. The Vice Dean at Syracuse University’s Law School says there’s a concern that the leak will make the high court look like any other leaky political institution. Keith Bybee is also Professor of Law and Political Science.

“Well it makes justices look less like impartial arbiters of law and more like politicians in robes. It makes supreme court decision making look less like a pursuit of justice and more like the pursuit of partisan politics by other means,” Bybee said.

Bybee says for years, the public has had this coexisting view that the Supreme Court justices are naturally influenced by politics and their backgrounds, but also operate on the basis of principle and impartial reasoning.

“What moves judges to decide a decision one way or another is not reducible just to the letter of the law or some logical syllogism. The experience that the judges had, personal experience and also political experience, their personal private beliefs…shape judicial decision making.”

Bybee says the leak, while unprecedented, is not the first. But he says it might undermine the institution’s secrecy and collegiality.

“Even though the court is in some sense structured and it has traditions and practices in place designed to prevent it from dissolving into partisan bickering and becoming just one more arena of bias in DC, there’s no guarantee that those mechanisms will actually stave off that outcome.”

Bybee says former justice Oliver Wendell Holmes described the court a century ago as nine scorpions in a bottle. Most justices are there for decades, and learn to get along because they have to work so closely together. At the same time, the conflicts between them can be very bitter.


The leaked draft Supreme Court opinion would have direct implications for abortion access in the United States, but a Syracuse University political science professor pointed out that it could also cause a domino affect on other privacy rights. Shana Gadarian said Justice Samuel Alito’s opinion indicated that he didn't not believe that the Constitution contains an explicit right to privacy.

"If it is not in the constitution, according to this view, would mean them across many different issues such as the ability to get birth control for people who need it, the ability to marry who you choose," Gadarian said. "Those kinds of rights that are based on one’s ability to have privacy in their private and social life might be at risk."

While Republicans largely advocate for less government involvement in the economy, Gadarian said they are more likely to intervene in the social and educational sphere. She said over the past year, conservative state governments across the nation are proposing and passing bills that follow this philosophy.

"Including on trans rights, including on teaching race in schools," Gadarian said.

If the decision in Roe vs Wade is overturned, states will create their own laws regarding abortion access similar to Medicaid and dental care. Gadarian said this results in increasingly varying health outcomes state to state.

“You know, some people will live shorter and unhealthier lives because of the states that they live in and it was the most influence to people do not have the means to move from state to state because they don’t have a job in another state, because they are poor, because they don’t have a social system," Gadarian said.

Katie Zilcosky is WAER’s All Things Considered host and features reporter. She also co-hosts WAER’s public affairs show Syracuse Speaks. As a reporter, she focuses on technology, economy, and identity.