The Leak

By now you've probably already heard about (and read about, and, if you are on Twitter, have been tweeted at about)  Politico's blockbuster scoop: a Supreme Court draft majority opinion, penned by Justice Samuel Alito and joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett, overturning Roe v Wade.  An unknown leaker leaked, not only the vote (at least as it stands at the time of the leak), but the entire draft opinion, which Politico also published.  

Earlier today, Chief Justice John Roberts confirmed the authenticity of the leaked document.  A leak of this nature, and with this detail, is nearly without precedent.  Roberts is said to be furious, and ordered an immediate investigation of this rare breach of Court protocol.

So what does it all mean?  Attorney and columnist David French summarizes the situation with a welcome note of caution:

We have a draft opinion, not a final decision. We know there’s a leak, but we don’t know the identity of the leaker. And we know the final result will alter our politics, but we don’t know how much. 

As much is still unknown, we're left to speculate.  So, here is one amateur observer's reading of the tea leaves:

Q: Who is the leaker?  

A: As of now, the leaker hasn't been identified.  But the pool of suspects must be considered relatively small: according to an attorney friend of mine, the folks who would have access to a draft opinion would be the nine justices themselves, the justices' clerks (each justice has a handful) and perhaps some other Court staff members.  My friend estimates that would work out to somewhere in the neighborhood of 50-75 people.  Of course, in this age of electronic hackery and snoopery, it's possible that an outsider obtained unauthorized access to an electronic version of the document.  An investigation presumably will look into all these possibilities.

Q: Why was the draft opinion leaked?

A: Until or unless the hacker is identified, the motive won't be crystal clear.  The consensus speculation is the draft was leaked by someone affiliated with the Court who is unhappy with the decision.  According to this theory, the strategy would be to gin up pressure in the media and the public that would induce one of the five justices in the majority to change his/her mind and vote to retain Roe.  As this may be the most-anticipated decision by the Court since the Obamacare decision (at least), and considering the controversies that have erupted during most of the recent Supreme Court confirmation hearings, it must be considered possible that some of those with a stake in preserving the status quo would go to some lengths to try to influence justices to change their positions.  Let us hope that the activism falls short of personal attacks and death threats against individual justices.  But it's not difficult to imagine that calls to "pack" the Court will be forthcoming, as will criticism of the Court's legitimacy.

It's worth noting that other theories for leaking the draft opinion have been advanced. French highlighted a tweet from conservative pundit Michael Brendan Dougherty:

French also described a similar theory:

The leaker may know that a justice is wobbling and might want to leak to lock in his or her vote, so that he or she won’t be seen as caving to the mob.

Q: What does this leak mean for the Supreme Court?

A: It is a crisis.  George Washington University law professor Jonathan Turley tweeted:

French notes, "

The leak represents an extraordinary breach of norms that dramatically undermines the process of deliberation and damages the legitimacy of the court. If the leaker is a court clerk, he or she should be fired and disbarred. If the leaker is a justice, he or she should be impeached and convicted. SCOTUSblog described the stakes well:

SCOTUSblog @SCOTUSblog

It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.

May 3rd 2022

22,515 Retweets107,025 Likes

Leaks open up justices to threats and pressure. Leaks mean that justices can’t trust their colleagues or their clerks. And this leak in particular comes at a time when America’s public institutions face a crisis of public trust. It has dragged the court into the muck and mire at precisely the time when the justices—individually and collectively—had done an admirable job at preserving the institution’s independence and credibility. 

Q: What does this mean for American politics?

A: Some random thoughts:

• This leak surely will prime the public's expectations for whatever the final decision is.  If the final decision is in line with what has been leaked, then the final decision will confirm what the public already has been led to expect.  On the other hand, if the final decision diverges substantially from what has been leaked, then we can expect at least part of the public to be initially confused, and possibly to misunderstand what the Court has decided, because the public's minds have been "pre-wired" to expect what was leaked
  
  
• If the final decision stands as signaled by the leak, the leak gives both sides additional time to plan their reactions and their go-forward strategies.  The Alito draft represents one of a range of possible decisions - to be sure, one that would have been deemed as among the most likely.  But it was not the only possibility.  For example, speculation is now rampant that Chief Judge Roberts, who did not join the draft Alito opinion, supported a less decisive break with the status quo - perhaps by voting in favor of the Mississippi law that set the limit on abortions to 15 weeks of pregnancy.  Now, activists must proceed with the understanding that the Alito draft is very likely to be the actual decision
  
  
• Will this decision ultimately lower the temperature of abortion as a public issue?  French thinks it's possible.  He notes that abortion rates are considerably lower now than they were in the 1980s.  He cites evidence that people's views of abortion are sufficiently complex that they don't fit neatly into "Abortion is always to be allowed / Abortion is never to be allowed" set of extremes that has characterized (caricatured?) abortion politics.  And perhaps most importantly, abortion will continue to be available in many places in the United States. We can expect "abortion tourism" to continue to grow, as pregnant women who live in states with restrictions seek more states with more permissive laws.  And we can expect to see mail order abortion pill orders to increase.