My first thought when the news broke was that it must have come from Sotomayor’s office. She’s the biggest political hack on the Court and presumably has the hackiest activist clerks. If anyone’s going to roll a grenade into SCOTUS in a fit of outrage over the looming reversal of Roe, it was Team Sonia.
But the more I consider that, the less sense it makes. What would she and her deputies gain by leaking this?
For starters, why now? If the point is to inflame Democrats so that they’ll turn out in force in November, it’s idiotic to leak the decision early. That’ll give the country extra time to adjust psychologically to a post-Roe reality, risking that liberal passions will cool somewhat before the midterms. If you want lefties energized to vote, you should keep quiet until the decision is released in late June, as expected. That might be close enough to Election Day to matter.
Another question as to timing. The draft of Alito’s opinion says it was circulated on February 10. Presumably the leaker has had a copy in their possession since then. Why not leak it sooner instead of waiting three months? If the point was to ruin the justices’ trust in each other and try to create a public stir to shift the outcome before it’s finalized, an earlier leak would have worked just as well. Maybe better, since it would have derailed the deliberation process at an earlier juncture.
Although there’s a potential answer to that: Maybe it did leak early and it took Politico three months to find a second source inside the Court willing to confirm its authenticity.
The strongest reason to doubt that it came from a liberal is that the leak makes it *harder* for the five conservative justices in the majority to change their vote:
If they backpedal because of the media outcry—which has been deliberately engineered by a clerk for the US Supreme Court—they will effectively be giving in to PR terrorism, and destroying what little legitimacy the court has left.
Upholding Roe now is institutional suicide.
— Aaron Sibarium (@aaronsibarium) May 3, 2022
Imagine that you’re Neil Gorsuch or Brett Kavanaugh. Your initial vote at the conference of the justices in December was to overturn Roe but now you’re having second thoughts. John Roberts’s compromise position, in which Casey goes but the basic framework of Roe stays, is starting to appeal to you. Suddenly — boom. Alito’s draft is published in Politico. Now the world knows what your initial vote was. Voting with Roberts would have made you a villain to the right under any circumstances, but voting with Roberts now that your first vote to dump Roe is known to the public would make it look like you bowed to the public outcry after Alito’s draft was leaked.
Not just your conservative bona fides but your basic judicial integrity would be destroyed. You’d be viewed as a spineless joke. And by appearing to bend to public pressure, you’d incentivize more leaks of major decisions in the future aimed at swaying undecided unjustices.
Realistically, your only choice now that Alito’s opinion is out there is to stand pat on your initial vote and resist Roberts’s appeal.
Which makes me think … maybe it was a conservative justice’s office that leaked this after all.
There’s a third possibility, which might be most plausible: Roberts is doing his institutionalist best to court Kavanaugh and/or Barrett away from a full overrule of Roe and someone wants to deter that defection by documenting that they both initially voted to end it.
— Steven Mazie (@stevenmazie) May 3, 2022
Not to be a pill, but a friend reminds me it’s also possible-at least thinkable- that an angry conservative clerk leaked this as “the majority opinion that could have been”- had not Justice So-And-So Flaked Out.
— Michael Brendan Dougherty (@michaelbd) May 3, 2022
Two final thoughts. 1. Politico reports that the 5 original votes to overturn Roe are “unchanged *as of this week*,” but does not report (and the leaker would know) that they have all said they will join the Alito opinion. At least 1 is apparently uncommitted. Hence the leak?
— SCOTUSblog (@SCOTUSblog) May 3, 2022
Judging from the Dec. 1 oral argument in Dobbs, the three liberal Justices would bar the Mississippi law that bans abortion after 15 weeks as a violation of Roe and Casey. Justices Thomas, Neil Gorsuch and Samuel Alito are likely votes to sustain the law and overturn both precedents. Justices Kavanaugh and Barrett seemed, in their questioning, to side with the three conservatives.
But Chief Justice John Roberts tried during the oral argument to find a middle way…
The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.
That read like speculation at the time. And possibly it was; its appearance a week before the Politico story could be pure coincidence. But now that it’s been followed in short order by an unprecedented leak of Alito’s draft, it reads like something more. Maybe a little birdie with inside knowledge was whispering to the WSJ’s editorial board that one of the five votes to overrule Roe was getting cold feet thanks to Roberts.
And if so, given that the board is famously conservative, it’s likely that that little birdie is conservative as well. Maybe he or she hoped that the Journal editorial would spook whichever justice was wavering and steer them back into the anti-Roe majority, only to find that it didn’t have the desired effect. That called for the nuclear option, leaking the actual first draft of Alito’s opinion to inform the public that there were five anti-Roe votes at the start. The waverer will now have to anticipate being called a coward who lost their nerve after the draft went public if they don’t stick with their original vote.
By the way, does that also help answer the question about the timing? Maybe the reason we’re seeing Alito’s draft from February 10 is because the waverer has *already* changed his or her mind since then, such that Alito’s draft is no longer the opinion of the Court. Maybe there’s a new majority opinion authored by Roberts joined by the three liberals plus the waverer to uphold Roe in some fashion. Leaking the Alito draft would create a false impression that it represents the current view of the Court when in fact the consensus changed some time ago, before the leak.
Although that would contradict Politico’s report last night: “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 in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.”
Which, actually, points back towards the possibility that it was leaked by Sotomayor’s office or some other liberal. If the five anti-Roe votes now seem “locked in,” with Roberts having failed in his bid to flip anyone, that’s the point where the leaker might say “f*** it” and pull the pin on the grenade to humiliate the Court as an act of revenge.
Either way, it’ll be hilarious watching all of the Democrats and Republicans who are outraged today about the leak suddenly pipe down if the leaker happens to be aligned with their side.
A subsidiary question, by the way, is whether the leaker was a clerk, a Court staffer, or one of the justices themselves. I lean strongly towards believing it was a clerk. A justice who leaked it would know that being found out would destroy his/her relationship with the other justices. It might even lead to impeachment by the House. A Court staffer would be risking his/her livelihood by leaking, costing them a job they may have held for years. Only the clerks are short-term employees. And because ideology plays a role when clerks are hired, it’s easy to imagine one of them being so pro- or anti-Roe that they concluded for strategic reasons that serving their ideological cause trumped their duty to honor the Court’s institutional norms.
If it was a clerk, I wish them luck finding gainful employment if they’re discovered. I’ll leave you with this.
Justice Scalia to his new law clerks, as told by former clerk @isamuel: “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” https://t.co/x4QxmP5EOZ pic.twitter.com/OEXSA75eSz
— Orin Kerr (@OrinKerr) June 8, 2018