Overturning Roe v. Wade is highly unpopular. So when the news arrived that the Supreme Court was poised to do just that, the conservative movement decided the ruling itself was merely a sideshow. The leak was the thing. Mitch McConnell announced the issue was “not the leaked draft but the fact that the draft was leaked.” Conservatives have engaged in an escalating series of denunciations and threats to prosecute, disbar, or — if the leaker is a justice — impeach the culprit. With all this drama about the catastrophic wound to the Court’s integrity, who could even remember what the Roe v. Wade case was even about?
Here is National Review’s editorial arguing for why the leak poses such a mortal threat to the rule of law:
The legitimacy of the Supreme Court’s vital constitutional duty to pronounce authoritatively what the law is in cases where it is called to do so hinges on the integrity of its process. The Court has thus been admirably disciplined about maintaining the secrecy of its deliberations until rulings are announced. Without that discipline, the Court’s decision-making would be subjected to intense political pressure — the very antithesis of a system that insulates the judiciary from politics so that cases can be decided pursuant to law, without fear or favor.
Leaking internal deliberations, frets NR, will subject justices to political pressure — thereby weakening the Court’s legitimacy.
One thing to note in response is that this very thing has already happened. Several days before Politico received the draft of Samuel Alito’s ruling, The Wall Street Journal published an editorial cagily describing the court’s internal deliberations. It warned that Chief Justice John Roberts “may be trying to turn another Justice now” — naming Brett Kavanaugh or Amy Coney Barrett as his targets — away from the conservative bloc and toward a compromise ruling that would preserve some version of Roe. The editorial got quite specific about the internal breakdown of the vote:
If [Roberts] pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.
This turned out to be a good guess!
The editorial proceeded to craft an argument for why Kavanaugh and Barrett should stick with Alito rather than defecting to Roberts. Leaking internal deliberations in order to lobby the justices seems to be fine when conservatives are doing it.
Yes, there is a difference in degree between a leak couched in the guise of speculation and the leak of a circulation draft. But the purpose and effect are the same.
What’s more, all this conservative rhetoric simply assumes that the leaker is a liberal — even though absolutely no evidence exists to support this conclusion.
The Journal’s editorial on Tuesday denouncing the leak frames it like this: “The question to ask in a leak case is always, cui bono? Who benefits?” Nine paragraphs later, apparently having forgotten the question it raised, the editorial casually asserts the likely beneficiaries would be conservatives: “Our guess is that the leak is likely to backfire at the Court. A Justice who switched his or her vote now would be open to ridicule for wilting under pressure.”
That is a good argument. In fact, it is the all-but-explicit reason for the original leak to the Journal editorial page the week before. The conservatives were concerned Kavanaugh or Barrett might defect from Alito’s ruling and leaked these concerns to get the Journal to push them to stay strong.
The second leak, to Politico, is consistent with the same motive: It could have been designed to pressure Kavanaugh and Barrett to stay with their original positions. Now that it’s leaked, they will be “open to ridicule” if they change their minds. Indeed, the conservative movement is now insisting the very legitimacy of the Court rests on them not changing their vote — which would reward the (presumably liberal) leaker.
This combination of assuming the leaker is a liberal and arguing that conservatives will benefit is common. Here is conservative legal apparatchik Randy Barnett treating it as a given that the leaker comes from the left:
Then, two hours later, arguing that the leak will help conservatives:
People don’t always act rationally. Maybe the leaker was a liberal who was not thinking very clearly. But the fact pattern on its surface hardly supports the right’s putative certainty that the leaker came from the left.
If a bank employee stole a small amount of money from the safe and then, a few days later, there was a huge robbery from the same safe, who would be your first suspect?