The biggest political story in recent memory — the Supreme Court has apparently decided to overturn Roe v. Wade — was delivered by a virtually unprecedented leak from inside the secretive Court. Someone within the Supreme Court Building got their hands on a draft opinion written by Justice Samuel Alito for the conservative majority in the case of Dobbs v. Jackson Women’s Health Organization and handed it over to Politico. Now, everyone — including the Justices themselves — are looking for the culprit.
On Tuesday morning, Chief Justice John Roberts released a statement directing the Marshall of the Court to open an investigation into the source of the leak. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts wrote. “The work of the Court will not be affected in any way.”
As soon as the story was published, speculation began about who inside the Court might benefit from revealing that the conservative justices are prepared to dismantle the ruling providing abortion rights for the past 50 years. Here are some of the leading theories.
It was a leak from the right to stop Kavanaugh from defecting
According to Politico, a clean majority of four conservative justices voted with Alito, following December’s oral arguments in the Dobbs case. With the three liberal justices working on dissenting opinions, that leaves Roberts’s position unknown — though it is believed he is trying to find something like a compromise that doesn’t totally destroy Roe. To stop Brett Kavanaugh from swinging and joining Roberts in a compromise decision written by Roberts, the leak was meant to pressure him into holding his position and avoid the ire of becoming the Republican-appointed Catholic justice who upheld the right to an abortion. NPR’s Nina Totenberg said on Sunday that she thinks “the only [theory] that makes sense is that it came from somebody who was afraid that this majority might not hold.”
It’s designed to make the ruling as drastic as possible
Written in February, Alito’s draft opinion does not waver, describing Roe as “egregiously wrong from the start” and stating that “a right to abortion is not deeply rooted in the Nation’s history and traditions.” Some legal scholars and former Court clerks have suggested that releasing the opinion — whether or not it represents a more recent draft held by Alito — could serve as a method to keep conservative justices in line in case Roberts makes a push for a more moderate decision.
It’s a leak from the left to influence Roberts
According to a source familiar with the deliberations who spoke to CNN, Roberts does not want to overturn Roe entirely, placing him most likely in the minority with the three liberal justices. However, in the December oral arguments in December for Dobbs, Roberts signaled that he would like to gut Roe’s protections without entirely revoking the constitutional right to abortion.
By revealing the severe nature of the opinion as it stood in February, a liberal justice or their clerk could be attempting to pressure Roberts into pushing more forcefully for a decision that does not set up states to establish absolute abortion bans.
Aside from galvanizing the activist wing of the party, it would also provide an outlet to push back against the conservative violation of the norms surrounding the Court over the past six years, as law professor Kate Shaw writes:
“I think the logic there would be something like the court is about to take a truly extraordinary step of rolling back this right upon which Americans have relied for a half century and an institution. And thus these long standing norms of secrecy and confidentiality actually don’t have to be respected and can be thrown out the window because extraordinary times call for extraordinary measures.”
It was Roberts
Probably not. While Roberts would have some clear motivation to release the draft as stated above, he is also an institutionalist who described the leak as “a singular and egregious breach” of the “exemplary and important tradition of respecting the confidentiality of the judicial process.” The prospect of the chief justice leaking a draft opinion only to launch an investigation into himself also seems unlikely, however eroded the norms of the Court may be.
It’s designed to blunt the liberal reaction to the final decision — or serve as a distraction
Another theory posits that a conservative clerk or justice on the court leaking an old draft could be an attempt to mitigate the reaction to the final decision, if the conservative majority ultimately decides not to fully overturn the constitutional right to an abortion:
If the leak is supposed to be a distraction from the severity of the ruling, Republican lawmakers are running with it. In a press conference on Tuesday, Senate Minority Leader Mitch McConnell refused to answer questions on the draft decision itself, or if he takes responsibility for the conservative super-majority on the Court which allowed it. Instead, he insisted that “the story today is the effort by someone on the inside to discredit the institution.”
This post has been updated.
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