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The New York Times on Friday published a remarkable report on the Supreme Court’s overturning of Roe v. Wade last year. It illuminates the court’s secretive internal wrangling that culminated in the decision to strike down federal abortion rights, a longtime goal of the conservative movement.
It also lends support to the theory that a conservative, rather than a liberal, was the one to leak Justice Samuel Alito’s draft Dobbs opinion to Politico, because, as the Times notes, doing so “helped lock in the result.”
The report from Jodi Kantor and Adam Liptak, which is worth reading in full, reads in part:
Whatever the intent, the breach became a strike on the chief, Justice Breyer and their quest for compromise, said several people from the court. . . . The fact that the entire draft had been leaked, not just the outcome, raised the possibility that someone had tried to either expose the language or seal it. Pending votes were secret in part to allow justices to change their minds, and making the draft public had effectively cemented the votes.
That is, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were on board with Alito, and the leak kept it that way, as reflected when the opinion came down in June 2022. Those four justices joined Alito’s decision to overturn Roe, Chief Justice John Roberts issued a narrower concurring opinion, and the three Democratic jurists at the time — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — dissented.
The leaker still hasn't been identified. But it’s worth keeping in mind, as the Times’ report recalls, that the Wall Street Journal editorial board — friends of Alito, as we know — worried in April 2022 that Roberts “may be trying to turn another Justice” to his side. That same editorial “guess[ed]” that Alito would write the opinion. Both of those things were true but not public, albeit not too outlandish to presume. So there may have been a leak to the conservative outlet (presumably from the conservative camp) before Politico published Alito’s draft opinion in May and reported that those other four GOP judges had sided with him. So it’s not unreasonable to infer that someone in the conservative camp was already comfortable speaking with the media about the court’s deliberations. While that in and of itself doesn’t prove it was a conservative who leaked to Politico, it’s something to consider in the equation.
To be sure, someone opposed to the then-pending ruling may have leaked it with the intention of calling attention to the erosion of abortion rights, or with the hope that leaking could change the outcome. So just because it makes more sense that a conservative leaked the opinion because it had the effect of cementing those votes — that doesn’t mean that’s what happened.
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