A Supremely Problematic Leak

America was rocked today by the news of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, the case addressing the continuing vitality of Roe v. Wade. The leaked document was a draft of an opinion written by Justice Alito that would–if ultimately issued–reverse Roe as wrongly decided, and leave abortion rights to be decided by state legislatures.

The views on both sides of the abortion debate are so heated it’s impossible to fully set them aside to focus on the fact of the leak itself. But the leak deserves attention in its own right, regardless of which side of the Roe debate you are on. Although there have been leaks at the Supreme Court, those instances are rarer than hen’s teeth. The Court is used to conducting its deliberations and opinion-writing in complete secrecy, with no indication of its decisions outside of the tiny universe of Justices and their clerks until the Court’s opinion on a matter is publicly announced to the public. There is good reason for that rule of strict confidentiality: the Supreme Court routinely handles cases of enormous importance, and any kinds of leaks could have far-reaching political, economic, and social consequences–just as the leak of the Dobbs opinion did.

The idea that someone leaked a draft Supreme Court opinion under these circumstances is horrifying to those of us in the law profession. A tweet from SCOTUSblog, a non-partisan website that carefully covers every case before the Supreme Court, aptly captured the reaction of many: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.” Chief Justice Roberts echoed that sentiment in the statement he issued today, which noted: “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The Chief Justice has ordered the Marshal of the Supreme Court investigate the source of the leak, which is absolutely the right thing to do. We don’t know yet who leaked the opinion, but it’s clear that their intent was to manipulate the decision of the Dobbs case, the votes of Justices, the terms of the Court opinions, and the political and public reaction to a potential reversal of Roe. The Chief Justice vows that the work of the Court “will not be affected in any way” by the leak, and states: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” But what’s troubling here is that someone–a clerk, an employee, or even a Justice on the Court–attempted to exert extrajudicial influence on the Court in the first place. That prospect is extremely unsettling, because if someone thought it was appropriate to leak the draft of the Dobbs opinion, what’s to prevent leaks in the future of opinions in cases involving redistricting, or presidential powers, or the death penalty, or any of the other hot-button issues that the Court regularly addresses?

I would make one final point: although the Court typically keeps virtually everything about its operations confidential, I think it is important for the Court to disclose any findings the Marshal makes about who did the leaking, and why. The role of the Supreme Court is essential to our constitutional system, and leaks erode the trust that is one of the Court’s most powerful attributes. The public deserves to know who–as the Chief put it–tried to “undermine the integrity” of the Court’s operations.

Should Earthlings Be Advertising That We’re Here?

Stephen Hawking was, by all accounts, a pretty smart person. He also was very concerned about our ongoing efforts to reach out to potential alien life in the cosmos. Hawking rejected the notion that an advanced alien species would necessarily be a peaceful friend that would help backward Earthlings to achieve a higher level of consciousness. Instead, he thought it was at least plausible that any aliens might be interested in plundering Earth’s resources or finding new locations for alien colonies. As Hawking put it: “Meeting an advanced civilization could be like Native Americans encountering Columbus. That didn’t turn out so well.”

So, should Earthlings be waving our arms and letting others in the cosmos know that we are here? And who should decide whether to accept the risk that such a decision could prove to have disastrous, alien invasion-type consequences?

In some ways, we’ve been reach out to aliens for a while. We’ve sent out spacecraft with information about humans and our location, and radio and television signals have been projected out into space for a century or so. But the chances of aliens coming across a spacecraft in the interstellar void is like finding a needle in a haystack, and radio and television signals fade below background radiation levels shortly after they leave the solar system.

However, scientists are getting ready to launch new messages to aliens that are designed to maximize the chances of letting the aliens know we are here. In China, in 2023, the world’s largest radio telescope is planning to send a message in radio pulses that will convey prime numbers and mathematical operators, the biochemistry of life, human forms, the Earth’s location and a time stamp. The message will be beamed to stars that are from 10,000 to 20,000 light-years from Earth–which means it will take a while before we get a response.

The other effort is focused on a solar system that is much closer–only 39 light years away. Later this year, scientists in England will beam a message toward the Trappist-1 system, which includes seven planets, three of which appear to be Earth-like worlds where the distance from the Trappist-1 star indicates that liquid, and life, could exist. If life exists on one of those planets, and if it is advanced, and if it detects the signal–and those are pretty big ifs–we could get a response back in as short as 78 years.

But the bigger question is, should we be doing this at all, and should such attempts be left in the hands of scientists who think it is an interesting project? Or should we focus instead on improving our technology, developing our own ability to venture out into space and explore, and getting better prepared for any aliens who might take us up on our invitations to visit? Either way, it seems silly and pretty darned naive for us to assume that any aliens who might come to call will inevitably be peaceful friends who are looking only to help us out of the goodness of their hearts.