The Supreme Court leaks are transparent political plays

Unless you’ve been living under a rock, you probably know that last Monday Politico published a leaked copy of Supreme Court Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, which the Supreme Court is expected to rule on by early July. While upholding Mississippi’s ban on abortions after 15 weeks of pregnancy, the draft opinion calls for the overturning of Roe v. Wade and Planned Parenthood v. Casey — and abolish the constitutional right to pre-viability abortions that the Supreme Court recognized and reaffirmed in those cases.

Only eight people would have heard what Roberts said at the court’s December conference — the other eight justices.

The leak was stunning — apparently the first time in the court’s history that a full text of a draft of an opinion was made public before the ruling itself. The leak was also quickly blamed on liberals. Texas Sen. Ted Cruz, for instance, claimed that a law clerk to one of the three liberal Justices was responsible. When asked by a reporter how he knew that, he retorted, “I’m not a moron.” Other Republicans went so far as to publicly speculate — without any actual evidence — that the leak came from Justice Sonia Sotomayor, or, based on nothing other than their resumes or personal relationships, from one of two publicly doxxed law clerks. (I won’t amplify those claims by linking to them here.)

You might also have noticed these claims have died down over the past week. And for good reason. The Washington Post published a remarkable follow-up to the news of the leak, reporting that “as of last week, the majority of five justices to strike Roe remains intact, according to three conservatives close to the court.” The same story reported that a "person close to the most conservative members of the court said [Chief Justice John] Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now.” But only eight people would have heard what Roberts said at the court’s December conference — the other eight justices. In journalism code, the Post was effectively reporting that this latest leak came from someone who had received the information from either Justices Clarence Thomas, Samuel Alito or Neil Gorsuch. In other words, at worst, the conservatives were leaking too.

And this Wednesday, Politico followed up with another report attributed to a “person close to the court’s conservatives,” who was quoted as saying that “this is the most serious assault on the court, perhaps from within, that the Supreme Court’s ever experienced.” The same story reported that the original 5-4 majority to overrule Roe and Dobbs had not changed, and that Alito’s draft opinion “remains the court’s only circulated draft in the pending Mississippi abortion case.” Whoever was responsible for leaking the draft opinion itself, it is now clear that many — if not most — of the leaks related to Dobbs are coming from the right side of the court, not the left.

That conclusion is about much more than just palace intrigue. It underscores one point about the court and one point about many of its more visible conservative defenders. To the former, much of this campaign now appears to be calculated to pressure a single justice — Justice Brett Kavanaugh — in to holding the line and signing on to an opinion that overrules Roe and Casey. At the heart of that campaign is an all-out assault on Roberts — who famously switched his vote late in the court’s 2012 consideration of a constitutional challenge to the Affordable Care Act, providing the crucial fifth vote to uphold President Obama’s signature domestic policy accomplishment. The chief justice is also likely the source of conservatives’ current concern — that he might write a narrower opinion upholding Mississippi’s law without overruling Roe and Casey, which might peel off Kavanaugh’s vote.

It is now clear that many — if not most — of the leaks related to Dobbs are coming from the right side of the court, not the left.

Again, Wednesday’s Politico story is revealing. After breaking the news that apparently nothing material had changed since the circulation of Alito’s draft opinion in February, the story quoted “an attorney close to several conservative justices” for the proposition that “There is a price to be paid for what [Roberts] did” in voting to uphold Obamacare, and that “everybody remembers it.” The obvious insinuation is that a justice who breaks from the Alito opinion and joins in the chief justice’s (presumably narrower) separate analysis in the Mississippi case will pay a similar price for doing so — not from the left but from the right.

That at least most of the leaks related to Dobbs are about driving home that point is just one significant takeaway from this reporting. The other is the shift in tenor from those who initially blamed “the left” for exposing to public scrutiny the court’s internal deliberations. Instead of continuing to press those claims, their arguments have shifted in the past week to criticizing those who like me have been critical of the draft opinion itself. One of the common lines of attack from the right has been that critics like me are misrepresenting the potential implications of the analysis in Alito’s draft opinion for other rights — where we fear that the analysis doesn’t just doom abortion rights but also opens the door to efforts to overrule decisions recognizing other rights not expressly enumerated in the Constitution. They insist that we’re erecting a bogeyman — and that, because the draft opinion simply asserts that it’s limited to abortion, we should believe it even if its logic counsels otherwise.

What’s so telling about this argument is that it’s not a defense of the substance of the draft opinion in Dobbs; it’s an argument that the substance of Dobbs will be good for one train only. Simply put, the claim is that Dobbs won’t be extended to other rights because those rights are more politically popular, and so it’s less likely that state legislatures would force the issue by passing laws infringing on them. Whether or not those arguments are credible given what’s actually happening on the ground in red states, they are inherently political, not legal; they are assertions that politics, rather than law, will limit Dobbs' fallout. That’s the common thread: Just like the leaks, increasingly little about the Dobbs decision is about neutral legal principles. It’s all politics, all the way down.