Volume 36

The Dobbs Leak as an Illustration of the Impasse Between Legal Ethics and Reality

by Elizabeth Yoder

The creation and interpretation of legal ethics tends to exist in a vacuum. It is difficult to predict all the ways legal ethics will be interpreted and enforced. Because the interpretation and enforcement of legal ethical codes can be unpredictable, legal ethical codes cannot adequately anticipate every situation that may arise. There is no way around this reality, and this Note does not suppose there is. Instead, this Note seeks to demonstrate how the Dobbs leak illustrates the impasse between legal ethics and reality.

On May 2, 2022, Politico leaked what was reportedly the draft majority opinion in the high-profile case Dobbs v. Jackson Women’s Health Organization. The Politico article stated that the opinion was written by Justice Samuel Alito, and “[a] person familiar with the court’s deliberations said that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito . . . and that line-up remains unchanged as of this week.

Chief Justice Roberts confirmed the authenticity of the leak the following day. Having an entire draft of a Supreme Court opinion leaked to the press prior to the issuance of the official decision was unprecedented. The leak was followed by uproar from not only pro-choice advocates but also legal scholars who were trying to discern the impact of the leak on the justice system. There was specific concern over how the leak would affect the legitimacy of the Court and the Court’s deliberation process. This Note seeks to add to that conversation by considering what the Dobbs leak reveals about legal ethics, namely that the Dobbs leak is an illustration of the unbridgeable gap between legal ethics and reality.

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