The Supreme Court might have endured a credibility blow Monday night when Justice Samuel Alito's initial majority draft opinion was apparently leaked to Politico, portending a possible overturn of the landmark Roe v. Wade ruling from 1973.
But it doesn't mean all leakers would automatically be subject to criminal arrest, Judge Andrew P. Napolitano told Newsmax.
On Tuesday's "Eric Bolling The Balance," Napolitano, a noted author, TV legal analyst and former New Jersey Superior Court judge, said the arrest criteria would involve who the leaker turns out to be, along with their "status."
"If the leaker is an outside person who hacked into the [Supreme Court's] computer system, well, that's a federal crime. That's a felony," Napolitano told Bolling, while estimating that each document hack attempt could result in a five-year prison sentence.
But "if the leaker worked for the [Supreme] Court, and had lawful possession of [Alito's majority draft opinion] and who violated their agreement of confidentiality, that is not a crime. However, it is a serious ethics breach. It's a fireable offense. And if that person is a lawyer," they run the risk of being barred from practicing law in the future.
Either way, Napolitano said Monday's apparent leak erodes some trust in the judicial process.
"This [leak] is not unprecedented, but it is extremely, extremely rare," said Napolitano, who hosts the "Judging Freedom" podcast.
Napolitano reminded TV viewers that the original Roe v. Wade ruling in 1973 was leaked three days prior to the final determination.
"What was leaked [in 1973] was the final opinion, not a work in progress. This [Monday leak] is exquisitely unfair to Justice Alito and to the other members of the court, because it is a work in progress. It's not a final document," Napolitano said.
"And if the (final) decision comes out, and it's different from [Monday's leaked document], it'll be fodder for the critics to say, 'Aha! You changed it!'"
Therein lies the meaning behind Monday's media leak: fanning the national flames of a hot-button political issue, he said.
"This leak, given the timing of it, and the absence of the other side's opinion being leaked was obviously done for political purpose, [in hopes] of terrorizing the five members of the majority," Napolitano said. "But guess what? They will not be moved on this. This is why [the justices] have lifetime tenure."
Napolitano says there's a reason why most Supreme Court decisions are immune to leaks. It's a tight inner circle of people in the know.
"When you are a judge ... or you're on the Supreme Court, like Justice Samuel Alito ... you have this bond, this trust with your clerks. You have to be able to be absolutely 100% open with them, and you have to know they'll respect the confidence in which you tell them."
On Tuesday morning, Chief Justice John Roberts confirmed the authenticity of Alito's initial majority draft opinion, while also calling for a full investigation into the "egregious" leak.
It remains to be seen whether the Supreme Court will issue a final determination of Roe v. Wade in the coming weeks or months.
It's also possible that the ruling will never see the light of day with the high court.
If the court overturns Roe v. Wade, however, residents of the 21 states that already restrict abortion at various levels would likely have no legal recourse for future treatments.
"Probably not," said Napolitano, with the possible exception of the "first five-six weeks" of pregnancy in the 21 restrictive states.
"You want an abortion? I guess you'll have to go to New Jersey, where they'll pay for it up to the moment of birth."
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