Posted on 05/06/2022 7:01:14 AM PDT by Oldeconomybuyer
Among the debates generated by the leak of Justice Samuel Alito’s opinion in Dobbs is whether the leaker was conservative or liberal. The leak will ultimately pale in importance to the court’s decision once it is issued; the ruling will directly affect the lives and rights of tens of millions of people. But in the meantime, the motives of the leaker are an important topic because they help explain why an institution that zealously guards its secrets suddenly seems porous.
Start from the premise that there were actually (at least) two leakers, and three leaks. The first leak was to the Wall Street Journal editorial board last week. In substance, it was that the court had voted to overrule Roe v. Wade, but that the precise outcome remains in doubt because Chief Justice John Roberts is trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to a more moderate position that would uphold the Mississippi abortion restriction without formally overturning Roe.
While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito is drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito did draft that opinion.
The second leak was to Politico. Likely within the past few days, a person familiar with the court’s deliberations told them that five members of the court – Alito, Kavanaugh, and Barrett, along with Justices Clarence Thomas and Neil Gorsuch – originally voted to overturn Roe and that remains the current vote. In addition, the position of the chief justice is unclear. The remaining justices are dissenting.
The third leak was also to Politico. It was presumably – but not certainly – by the same person. Someone provided them with Alito’s Feb. 10 draft opinion.
Note as well what was not leaked. Politico seemingly was not told which justices had joined the Alito opinion. (The fact that five justices voted in December to overturn Roe as a general matter does not mean that all five of them necessarily would have agreed to sign on to Alito’s draft.) And Politico apparently was not provided with a subsequent draft, which ordinarily would have circulated to the court by now – in response to comments from some members of the would-be majority.
Here is what you would conclude is the state of play if you took all the leaks as both accurate and pretty complete (assumptions that, admittedly, are by no means certain). Alito’s opinion probably has been joined by Thomas and Gorsuch. Kavanaugh and Barrett have yet to join – most likely because they are waiting to consider an alternative opinion from the chief justice.
In these circumstances, which ideological side would think it benefits from leaking the opinion? It seems to me, that is the left. I can see conservatives believing that they would gain from leaking the fact that Kavanaugh had originally voted to strike down Roe. They might believe it would tend to lock him into that position. But that was accomplished by leaking that fact to both The Wall Street Journal and Politico.
The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and – with important caveats – substantive due process rights more broadly. And as a first draft – without the benefit of later refinement – it does not yet present the critique of Roe in its most persuasive form.
It is also important to look at the leak of the opinion through the lens of the fact that someone – almost certainly a conservative – had just before leaked the court’s tentative decision and the state of the voting to The Wall Street Journal. That leak was itself an extraordinary and unethical breach of confidences and certainly caused very deep concern inside the court.
My guess is that someone on the left felt somewhat justified in releasing the opinion in response. Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett were considering. That leak was a historically unprecedented violation of the deepest and most solemn trust among the justices and the court’s staff. It wounded the institution.
One small note about the identity of the leaker. There has been some speculation that turns on a supposed relationship with Josh Gerstein, the Politico legal affairs reporter who is the lead author on their story. It seems to me that the leak very likely runs instead through the other reporter with a byline on the story: Alexander Ward, who is a national security reporter. In response to questions from The Washington Post, Politico confirmed that the story was very tightly held from even its own staff. Almost surely, the leaker would have insisted on that confidentiality. I cannot think of a reason that Ward would have been on the story other than that the leaker communicated through him, not Gerstein. And Politico would have felt compelled to give Ward a byline on such a historic scoop.
It's either Constitutional or not. THAT is all they are to decide. Period.
Will the publisher of the leak get a Pulitzer or a Nobel? Others have.
Unintended consequences of the leak is that now, finally, there is open discussion on Roe v Wade and how it came about, along with the fact that if indeed it is overturned abortion will not be banned in the US, only that the matter would return to the states to decide.
Several generations have grown up believing that the “right’ of abortion was written into our Constitution, it isn’t.
Who is going to get hurt by the leak, simple, the Democrat.
Abortion may very well be the wrong hill to die on, but die on it they will.
Very likely. Maybe they’ll be idolized as the SCOTUS “Deep Throat”
I read the entire draft. I disagree with the essayist and say Alito’s is a very convincing argument against Roe.
This article leads me to believe it will not be overturned.
Isn't that sexual harassment?
If Roe is swept away, it will hurt Democrats at the federal level, but give power to Democrats at the state level.
It will take abortion off the table with regard to the Supreme Court and POTUS elections. But it would make governor races more about abortion.
“It’s either Constitutional or not. THAT is all they are to decide. Period.”
I agree! BUT everyone knows that’s not the way it is. A constitution should not stand in the way of the emotions of the crazies.
"If I Did It"
That there was was a leak is irrelevant. The Left will always do what they think they have to do to win, regardless of the cost, regardless of the crime regardless of precedent. That is the mindset we need to fight this war, and it is the only way to win - to be relentless, to concede nothing, to expect nothing reasonable from them, ever, not once, on any issue, no exceptions.
“Chief Justice John Roberts is trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to a more moderate position...”
I knew it. He didn’t release the decision immediately leaving the Justices and their families in danger and subject to harassment in the hopes it forces one of them to flip. Thanks Bush.
The big problem going forward as I see it is this: The court consists of 3 lefties who will have no qualms about legislating from the bench, 3 constitutionalists who actually adhere to the oath they took when they accepted their spot on the court, a Chief Justice who is the second coming of David Souter, and 2 really Justices who are WEAK and extremely susceptible to arm twisting by Roberts. I’ll bet this thing will wind up being changed or watered down because of Kavanaugh and Barret lack the gumption to do the right thing. This whole thing is not about abortion, it about upholding the constitution. The Roe v Wade decision was unconstitutional to begin with, and needs to be struck down.
How so?
To much ado about the leak the only change it goes to the states as it should.
Likewise. It is very strong. It is an indictment against a relativist, ungrounded, grasping-at-straws pile of bunk.
Lawyer Tom Goldstein seems almost desperate to spread the blame for the leaks to conservatives working in SCOTUS and then to excuse the leak of Alito’s draft opinion as simply retaliation for conservative leaks.
Of course Goldstein has no evidence, just what he pulls out of his keister, to support his gaslighting speculation.
On the contrary, the leak is a fundraising rallying cry for the left, who are drowning in Biden's misery index.
This also gives the militants an excuse to harass, intimidate and otherwise abuse all other issues. With a free pass from the Department of Just-us.
Hell, the libs will nominate the leaker to the next USSC opening.
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