Posted on 05/03/2022 7:06:39 AM PDT by untenured
I have now had a few hours to think through the apparent leaked Dobbs majority opinion. (My tentative thoughts are here (https://reason.com/volokh/2022/05/02/making-sense-of-the-apparent-leaked-opinion-in-dobbs/). Let's play a game of whodunnit?
To begin, there are a few clues that can be derived from the document itself. First, at the top of the first page is the phrase "1st Draft." And it is highlighted in yellow. The rectangle around the phrase is perfectly angled. This was done with a digital highlight feature, and not a real highlighter. I can reasonably infer this document was printed on a color laser printer. Most people would simply print a 98 page document on a traditional black-and-white printer. Most high-quality color printers leave a watermark (tracking dots) on every page. Even though this document was scanned by Politico, the authorities can probably trace it.
Second, in the upper right-hand corner of the document is a distribution list. The document is from Justice Alito. It was circulated on February 10, 2022. Above Alito's name are the names of the other eight Justices. But none of those names are checked or highlighted in any way. It isn't clear to me that this specific document was ever actually distributed to the other chambers.
Third, Dobbs was argued on December 1, and this draft was circulated about two months later on February 10, 2022. Now, this draft is nearly three months old. There may have been changes. On quick skim, I found at least one typo. On page 61, the draft opinion cites Ferguson v. Schrupa; it is Ferguson v. Skrupa.
So whodunnit? I can think of three possible answers.
First, this leak may have come from the chambers of a liberal Justice. Under this theory, the leak was designed to create a backlash, and pressure a conservative Justice to defect from Alito's opinion. But this theory makes no sense. If anything, this leak from a liberal chamber will entrench the five-member majority to avoid the appearance that the pressure campaign worked.
Second, this leak may have come from the chambers of a conservative Justice. Under this theory, the leak was designed to prevent a conservative Justice from defecting from Alito's opinion. But this theory also makes no sense. If anything, this leak from a conservative chamber would infuriate a swing Justice, and push them out.
Any clerk must know that this sort of leak would ruin their careers, and possible disbarment or criminal prosecution. And a Justice must know that authorizing this leak would probably lead to impeachment proceedings. I do not think this leak came from a chambers.
There is a third option: the leak did not come from a chambers. I hinted at that theory in my initial post. Rather, the leak may have come from someone with access to the Supreme Court's draft opinions. And history suggest that this sort of leak is possible. Josh Gerstein (yes, that Josh Gerstein) wrote an essay for Politico tonight (https://www.politico.com/news/2022/05/02/supreme-court-draft-opinion-00029475 ) about past leaks from the Supreme Court:
In 1979, ABC News Supreme Court correspondent Tim O'Brien went on air with reports predicting the outcome of two decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the court had breached protocol, and a Government Printing Office employee involved in setting type for the court's rulings was transferred to a different division. The staffer denied leaking any information.
Here is my completely uninformed speculation. This document was typeset and printed in a formal fashion. This document was also likely not circulated to chambers, but was floating around. And whoever had this document does not yet have access to the more recent drafts, or draft dissents.
The Chief Justice should get to the bottom of this situation immediately, and be transparent about the investigation.
The "new girl" is not on the court.
They would not have access to anything yet.
It was definitely a leftist.
This was a political move to fire up the democrat base going into the midterms.
Yes. These are the highest level decisions of the court. Highly important and secret. The justices write/type the opinions themselves.
The American Left is filling its ranks of radical leftists by importing them from South Asia.
I bet its a fake or at least an early draft that may not be the one selected for the final. I don’t think its reasoned very well. So, I suspect that some of the clerk’s who help write the opinions have produced this as an option. And it may not be the one finally selected.
Sure, blame the new girl
/\
Over Target.
How do you know she is a girl ?
Are you a doctor /-)
Shame on you for assuming her gender.
The chin isn’t helping matters in that regard...
;’}
Or access to their computers!
Contractors?
Could be, but writing a 98 page document is quite a bit of work to put in for a hoax, and from what I read of it, it does not at all sound like the product of a leftie. It’s my experience that most lefties do not understand the right’s worldview well enough to successfully impersonate one in a document that is this specific. They always create a caricature instead.
My money is on Breyer himself.
A career ending move: his career is over, he is retiring.
Disbarment and no legal field employment: his pension is guaranteed for life.
He goes out in a liberal blaze of glory. He will be mentioned in all future legal history books. He will command enormous speaking fees on the lecture circuit.
Is it ironic that the spying on Trump is becoming a matter of legal record and then this happens? Is there really a difference between the the Deep State press, Deep State “academia”, Deep State Legislative, Judicial, Executive?
Likely whoever leaked it did so because they really believe there is a “right” to an abortion, and this was some kind of bombshell!
“Any chance there wasn’t a leak and it’s just someone making BS up, saying there was, to fire up the left?”
I thought about that, and I haven’t completely ruled it out. But I’m not inclined to go with it at this point.
I think (i.e., it’s my opinion) that the Dems aren’t taking any chances, and they are sending a very direct and not even slightly veiled demand to the Dem majorities in Congress to pass a bill that federalizes the right to abortion, before the mid-terms.
“I have investigated myself and found I have done nothing wrong.”
Consider.
Frame and remove a conservative judge , here comes KJB.
If it’s a left Judge, or someone in their office, and a judge is removed hello KJB.
Why replace one left judge with another left judge ?
Simple, all the current judges support natural rights
KJB , in front of congress, God, and the citizens, stated she has no position on natural rights.
Get a judge that rejects natural rights, you have a judge that rejects the very foundation of our government.
Our country would be
fundamentally changed.
Does that sound familiar ?
Does that ring a bell ?
( hint: obamanation )
The references and text have most likely been accumulated over several years and putting together 98 pages was mainly an editorial job.
I think the recently retired justice (or one of his peeps) may have leaked it. Being off the bench makes it a low-risk adventure.
Just my opinion.
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