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The Supreme Court opinion leak will go down in Chief Justice Roberts' legacy

SCOTT SIMON, HOST:

Chief Justice John Roberts has called the leaked draft opinion around Roe v. Wade an egregious breach. The draft did not disclose his own opinions. Joan Biskupic is legal analyst at CNN and author of the book "The Chief: The Life And Turbulent Times Of Chief Justice John Roberts." Thanks so much for being with us.

JOAN BISKUPIC: Wonderful to be with you, Scott.

SIMON: What do you think this leak tells you, an expert court watcher, about the court right now?

BISKUPIC: There's been a real breakdown. First of all, the opinion itself - it's labeled a first draft, but to even be proposing to do what it says - reverse a half-century of abortion rights - is startling, and then the way it was disclosed to the American public - through a leak from a news entity - was totally unprecedented. Never before in the history of the Supreme Court has there been an early draft of this magnitude released at this stage of the process. So it's all quite disruptive to the institution and to Americans, no matter what side they're on.

SIMON: How disruptive could the investigation the chief justice promised be? I mean, these are people who work with each other.

BISKUPIC: That's absolutely right. And I have to tell you that we're not sure how deep this investigation can even go. The person who's been charged with leading it is the marshal of the court, who does oversee a police force, but it's - this is not a deep investigatory group. And here's the other thing - will the justices themselves consent to extensive interviews? What about their law clerks? Will phone logs and email trails be scrutinized? Justices communicate with outsiders. Justices communicate with reporters, and they communicate with advocates, but in a kind of a general way. They're not releasing information about opinions, but they might not want just some generic communications revealed to the marshal of the court or to the chief justice's office.

SIMON: From what you've read of the draft, does it suggest to you any particular interest on the court would have more to gain from leaking it?

BISKUPIC: I don't think it serves either side. First of all, in some ways, it would appear to present this as a pretty final document just because it's now out there. And maybe in that respect, it could benefit the conservatives who really want this outcome of reversing the 1973 Roe v. Wade decision. But the outrage that it has provoked would probably cause some pause. But then from the liberal end, the three remaining liberals on the court - Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan - first of all, from what I know of them, they would never have been party to anything like this, and I doubt that their clerks would have been.

SIMON: Chief Justice Roberts is famed for saying, look, there's no such thing as an Obama judge, no such thing as a Bush judge, no such thing as a Trump judge. We are all appointed an independent. He was trying to make the case that the Supreme Court is not a political institution. Has that been damaged?

BISKUPIC: Oh, most certainly, and I think it was damaged even before this point. Donald Trump so undermined the integrity of the judiciary in that he acted as if judges who he appoints were automatically going to rule for him, and judges who were appointed by Democratic presidents would automatically rule against him. In many respects, individual judges and justices are a product of the president who appointed them. But what the chief was trying to say with that is that once an individual dons the black robe, he or she is supposed to be an impartial decider of the law. And that is a message that in recent years, it has continually been undermined, including by the Supreme Court itself, Scott, given that their lineups on religion cases, on racial cases often divide exactly along the lines of the Republican appointees in the majority and the Democratic appointees in dissent. And John Roberts is part of that. John Roberts has had a very strong agenda on trying to have more interaction between church and state. But what he is trying to argue to people is that these are not politically motivated decisions. They are based on laws and facts and the ideology much more than politics.

SIMON: This is a chief justice, after all, who saved Obamacare, who has often voted differently than some of the other conservative justices. Recognizing that we have no idea how he may cast a vote now, what - is his influence less on the court than it used to be?

BISKUPIC: It's very much less on the court. After Anthony Kennedy retired in 2018 and until the death of Ruth Bader Ginsburg, Chief Justice John Roberts was not only sitting in the center chair of the court - he was at the ideological middle, and he could control cases across the board. Now that he has far-right conservatives to his right, they don't need him. And on this case, when this Mississippi case was teed up, the state wasn't even asking for reversal of Roe v. Wade. It was only asking that its 15-week ban be upheld. I do not believe in this Mississippi case that he wanted to go this far so fast. He would vote to uphold the 15-week restriction, but wait for another case to truly decide the fate of Roe v. Wade when it had been squarely presented to the justices and it wasn't such a lunge to the right.

SIMON: Joan Biskupic is a legal analyst at CNN and a Supreme Court biographer. Thanks so much for being with us.

BISKUPIC: Thank you, Scott. Transcript provided by NPR, Copyright NPR.