Someone inside the Supreme Court leaked a draft majority opinion written by Justice Samuel Alito that would overturn two landmark abortion rights decisions, Roe v. Wade and Planned Parenthood v. Casey, to Politico. That much we know.
But we don’t know who did it and why they did it. While the main story here is that the Supreme Court now has five votes to overturn women’s reproductive rights, the provenance of the leak still matters. In fact, it very much matters for abortion rights, as it might help the public understand the behind-the-scenes politics within the court that could affect the ultimate outcome of Dobbs v. Jackson Women’s Health Organization.
There are a very limited number of people who could leak a draft opinion to the press from inside the Supreme Court. There are the nine justices themselves, their law clerks and their support staff.
Below are the current theories and why they may or may not affect the outcome here.
A Liberal Law Clerk Leaked It
After Politico published the story on the leaked opinion, the initial speculation online was that this must have been done in anger by a liberal law clerk. This theory, while initially attracting some followers from left-leaning organizations in praise of a “brave clerk,” has come to dominate the right-wing reaction.
Republican political consultants and media figures quickly decided that the leaker must be a specific clerk for one of the liberal justices. They went so far as to name this clerk and put a photo of them online. (HuffPost is not naming this person in order to avoid putting a baseless target on them.)
There is, however, no evidence that this person was the leaker aside from the fact that they are liberal, opposed the nomination of Justice Brett Kavanaugh as many liberal or left-leaning lawyers did, and at one point spoke to one of the two Politico reporters who broke the leak story.
This theory feels plausible. But it doesn’t make much sense.
For one, the three-justice liberal bloc on the court lacks real power, and leaking a draft wouldn’t fix that. The liberal justices have to convince two Republicans to come to their side, which is a very high hill to climb on such a high-priority issue for the conservative movement as abortion.
And there’s the timing. The leaked draft opinion was written in February. Why wait months to leak it? The liberals, having been in the minority for ages now, still try to influence majority opinions they oppose by making tiny changes around the edges, Yale Law School professor and former Supreme Court clerk Amy Kapczynski tweeted on Tuesday.
“Why leak something and undermine that whole strategy?” Kapczynski asked.
It’s entirely possible that the leaker is a liberal law clerk acting out of anger or pique or a desire to be anointed as a hero by the Corporate Fake News MSDNC, or whatever.
But if the theory is they were trying to change the outcome, it doesn’t make sense. Sure, conservatives will claim that Democrats are now going to do an “insurrection” on the Supreme Court, but you would have to hammer a pylon through your brain to actually believe that.
A Conservative Law Clerk Leaked It
Another theory is that a conservative law clerk leaked the opinion to make sure it is the final opinion. There’s no evidence this theory is correct, either, but it does have one point in its favor: It’s rooted in the history and structure that underlies the internal functioning of the Supreme Court.
The internal deliberations of the Supreme Court tend to work like this: A vote is taken on the outcome of a decision and the most senior justice then assigns the opinion to a member of the grouping with a majority of five or more votes. That decision is written and later circulated for edits and for the other justices to write their dissents and concurrences. First concurrences, and then dissents are circulated. Then the majority opinion can be edited for a final draft.
“[T]his is about the right timing for concurrences to come out,” Kapczynski tweeted on Tuesday. “I think best bet is that Chief Justice Roberts circulated one recently, adopting a more moderate position.”
This is the point at which justices may begin to change their minds about the original opinion they said they supported.
So, in theory, Roberts could be trying to peel off members of the original five justices who joined Alito’s majority opinion to secure an opinion that does limit abortion but stops short of overturning Roe and Casey.
Roberts, while known to oppose abortion, has always kept public opinion about the court’s legitimacy as his paramount concern. For this reason, he has sought to slow-walk the social changes the court’s conservatives are pursuing. Notably, he did not side with the five other conservative justices in allowing Texas’ recent anti-abortion law to go into effect nor did he join Alito’s leaked majority opinion.
If a conservative clerk wanted to prevent justices from that original group of five from jumping ship, leaking the draft could be a way to do it. If the court announces an opinion in June and it shows that Brett Kavanaugh or Amy Coney Barrett joined an opinion that doesn’t overturn Roe, they will be assailed as the spawn of David Souter.
Signs that conservatives are worried about Roberts’ moderating influence had already emerged in conservative media. A Wall Street Journal editorial warned on April 26 that Roberts “may be trying to turn another Justice now,” just as Roberts himself switched sides in the 2012 case that ended with him writing an opinion upholding the Affordable Care Act. The editorial even contained a “guess” that Alito was the author of the forthcoming majority opinion.
“We hope he doesn’t succeed — for the good of the Court and the country,” the editorial stated.
This warning shot came within days of when the Politico reporters likely obtained the leaked memo — they were working on the story on May 1, according to The New York Times, four days after The Wall Street Journal editorial.
“If a conservative clerk wanted to prevent justices from that original group of five from jumping ship, leaking the draft could be a way to do it.”
This wouldn’t be the first time that conservative media provided an inkling of the internal workings of the court.
In May 2012, conservative pundits and media outlets wrote a succession of columns warning that Roberts may have wobbled and decided to side with the liberals in the Affordable Care Act case. The existence of these columns seemed to suggest some kind of leak had come from inside the court that the conservatives had lost Roberts.
The National Review ran an editorial on May 24, 2012, calling on Roberts to ignore calls for him to side with liberals and uphold the health care mandate. Then on May 26, 2012, a column by George Will came out with the headline, “Liberals put the squeeze to Justice Roberts.”
“Soon after the message trickled from the Court that Roberts’s vote was ‘in flux,’ a right-wing bat signal went out, with a clear message: we need to tell the chief justice to grow a backbone,” Josh Blackman, a conservative lawyer, wrote in his book “Unprecedented: The Constitutional Challenge to Obamacare.”
“George Will and others answered that call. Conservatives, who had been noticeably quiet about the outcome of the case after the conference, suddenly perked up in the home stretch, precisely when the war was being waged within the Court over the final vote.”
A similar thing happened in 2019 around the high court’s decision in Bostock v. Clayton County, which affirmed that gay and transgender individuals are protected from discrimination by the Civil Rights Act. One month after arguments were heard in the case, National Review and The Wall Street Journal published pieces aimed at steering conservative Justice Neil Gorsuch away from the textualist arguments the liberal Justice Elena Kagan had made.
These public calls failed, and Gorsuch wrote the majority opinion based on the original understanding of the text of the Civil Rights Act.
The theory that a conservative clerk leaked the Dobbs v. Jackson opinion has a logic to it. There’s a purpose, beyond self-aggrandizement or creating a shock: It could be meant to prevent any of the five justices who signed on to Alito’s leaked opinion from going with a softer ruling instead.
And if that’s the reason for the leak, it’s an important statement on the internal struggles of the court, an opaque and unelected institution with incredible power over American lives.
Roberts Or One Of His Clerks Leaked It
Now we are getting into the more outlandish theories, but let’s work this one out anyway.
“The story that makes the most sense re the leak is actually Chief Justice Roberts, trying to illustrate to a swing justice what the backlash would be like,” Sean Trende, the senior elections analyst at Real Clear Politics, tweeted on Tuesday. “But it is also completely out of character for Roberts; burn the village to save the village isn’t his style.”
This has a logic to it, but, as Trende notes, nothing could be more out of character than for Roberts, or one of his clerks, to do this. It goes against everything that he has worked toward as chief justice — although, so does this leaked opinion. Still, it’s hard to imagine that Mr. Court Legitimacy would enable this leak and then issue a press release announcing an investigation into the leak.
Could the opinion have been leaked by a support staffer who found a copy accidentally left in a printer? Or could it have come from a computer hack?
These theories are highly unlikely. The Politico article contains background information from “[a] person familiar with the court’s deliberations,” that explains “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.”
That information is crucial to the story and is likely information that could only be learned as a justice or law clerk, or from them.