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.
There’s a total of 45 people who might have had access to that document - 9 Judges and 4 highest-level clerks.
Remove 5 conservative justices and their clerks, and that leaves only 20 people who might have leaked it. Add in some basic forensics like the color-printer mentioned, and it won’t take more than a few hours to find who did it.
It's Robert's, he probably ordered it, he won't look into it.
The assumption that the person who leaked this document is somehow “smart” must also be thrown away. “Smart” people do dumb and stupid things all of the time. If you have no morals you will do very dumb and immoral, unethical and illegal things - this is why I believe it was a left-wing clerk.
Discovery of the leaker might ruin his/her legal career, but a resulting political career might skyrocket. The left knows how to take care of its own.
This may be the first case where anonymous sources does not work for the press.
I'm with you. The Left is notorious for leaks, and there's plenty of history and/or receipts to prove it. In fact, they LOVE doing this sort of thing, and relish in the notoriety, even if it costs them their career.
Any chance there wasn’t a leak and it’s just someone making BS up, saying there was, to fire up the left?
Like the “whistleblower” we will all find out who it was but it will never be “officially” confirmed.
Remember that Roberts protected the whistleblower when Rand Paul asked a question. And Roberts obviously is for abortion, or at least not for overturning Roe vs. Wade or Casey. So he, as head of the Judicial Branch, will protect the leaker.
That, or the leaker can get ‘Ft. Marcy Park’d’ and just disappear.
A first draft? With typos and highlighting?
And do they typeset a laser printed document?
I think (though don’t know) that to do that would require so much effort and expertise, especially worth respect to SCOTUS jurisprudence, that it probably wouldn’t be worth the trouble.
This leak has KJB all over it imho
She was approved to fill the non vacancy remember .
All the rules went out the window when that happened.
Imho, KJB got access and the blame will be used to force either expand the court or frame one of the other judges, probably Alito or Beyer who didn’t retire when THAT turd was floated.
Just you watch.
I don’t think it’s the third option because the the leaked fed Politico info that the majority has held “as of this week” though one is “uncommitted” they also fed CNN that Roberts would uphold the 15 Week ban but doesn’t want to go all the way and end Roe.
Random IT guy wouldn’t know those things.
The guilty party should get more years than derick Chauvin got because the leaker actually did something wrong
Sure, blame the new girl.
Supposedly there are 2 clerks,who had relationship with politico - sounds like they might have their scapegoats
“There’s a total of 45 people who might have had access to that document - 9 Judges and 4 highest-level clerks.”
They do all the typing and filing?
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