And why?
My guess is that Kavanough is the source of the leak.
A clerk or staffer who got caught would be fired. A clerk’s legal career would be ruined. So i think one of the justices is more likely. They could do it without repercussion.
And which justice? That’s a harder call, but the others all seems to meet some basic standard of civility and decorum.
I still can’t figure out why. Who benefits from the leak?
WAG:
I could see Roberts doing it. While he is conservative he supposedly has some concern for the validity of the court and his legacy as a chief justice. Despite his conservatism I do not think he is so ideologically bound to think he must stop abortions at any opportunity.
As we have seen, the Alito decision that was leaked shows other rights are in his sites such as Lawrence and Obergefell. I cannot imagine Roberts wanting to have presided over so much backtracking and so much political activism on the court.
Undoing all of those decisions (and more) would make the court seem utterly unreliable and could prompt dems to actually consider stacking the court. Roberts would not want to be remembered for that. Future history books will name him because he is chief justice. He will be the one everyone remembers for centuries.
So, he leaked the draft hoping the public outcry might change some minds.
Again, this is 100% a WAG. I really have no idea who did it or why and admit the above is quite a reach.
I’d like to know just who had access to the draft. How far removed from a Justice does such a thing go in the usual fashion? It would be my first guess that someone opposed to the decision leaked it. I also understand that the multiple devious reasons for the leak, and the different scenarios can be Perry Masoned to death.
For now, I’m going with someone opposed, but I will not be surprised no matter who it was. Wait, OK, I will be surprised if it was someone in favor. I understand that the 2, 3, most recent Republican nominees testified before congress that they respected the precedent enjoyed by Roe, but I trust them as far as I can throw them and put them in the “in favor” of the decision camp. Regardless of their seeming lying testimony.
Not likely. Roberts is reportedly absolutely furious about the leak, which jeopardizes the Court’s longstanding traditional methods of debate, and has in fact tasked the Marshall with investigating and finding the perp.
I’m almost equally doubtful that it was any other justice. Such a justice would suffer significant consequences even if he couldn’t be “fired”, like being shunned professionally and socially by the other justices, with even the possibility of being impeached – Roberts seems to think this leak is a Very Big Deal.
I think it’s more likely a clerk for one of the justices, probably one of the liberal ones. Sure they’d likely be fired if discovered, but aren’t most of them there just for a short time anyway? I don’t think their career would be ruined – there are probably any number of liberal law firms that would happily take them on. Plus, they probably feel they’re unlikely to be found out. Even Politico might not know who it is.
I really doubt it was him. I think he respects the process too much to have done so. If he wanted the decision to go another way, surely he could have made that argument in private?
Boy Howdy! This not being The Pit, I’ll leave it at that. But I wouldn’t know how he would stand to profit from it…
A clerk is the most obvious and likely source and one for a liberal justice at that. I doubt those draft decisions get circulated more widely than that group and the justices which kinda narrows it down.
I don’t know exactly how it works in the US, but in Canada, law clerks are bound by solicitor-client confidentiality. Intentionally breaching solicitor-client confidentiality is a disciplinable matter by the law society. A serious breach of solicitor-client confidentiality, for a political purpose, in relation to the highest court in the land, would likely lead to professional discipline, possibly even disbarment. Not a good career move.
And even if the clerk survives discipline, what makes you think a law firm would want to take them on? Confidentiality is the bedrock of the profession. “If you leaked at the Supreme Court for personal reasons, how can I trust you not to leak our client’s affairs here?”
Would it even need to be one of the (legal) professional staff? This isn’t some obscure decision on a point of law about which laypeople don’t know or care - everyone from the lowliest IT support person upward could well have a strong (fanatical even) interest. How many people at the SC could access a draft? I don’t know the answer to that but I strongly suspect that it isn’t “the justices and their personal clerks, period.”
Those are valid points. However, I think it’s unfair to characterize this as having been done “for personal reasons”. Betraying solicitor-client confidentiality because you, personally, dislike the client would be “personal reasons”. This, OTOH, could be (probably should be) perceived as taking a big personal risk to do what the person believes is in the best interests of their country on a monumentally important national issue, and one which is being set in an egregiously wrong direction by an obviously very biased court (the result of an orange moron being able to appoint three justices in a row during one term). Surely some law firms would see this betrayal of traditional confidentiality as justified and commendable when seen in the full context of its national importance.
I think I read somewhere that the number of staff that the Marshall has jurisdiction over is something like 50. That’s probably the upper bound on the number of people who had access, but I’m just guessing.
If I might venture another WAG, I’d guess it was one of Breyer’s clerks. He’s retiring at the end of the term anyway, so all his clerks will go their separate ways. If I were a clerk (and this may be one reason why I’d be a terrible lawyer) I might take the risk that Justice Breyer wouldn’t dig too deeply into the leak, and that maybe I could dodge the official investigation.
Mind you, if Breyer did find out it was one of his clerks, I’m quite sure he would lower the boom.
IANAL but I don’t think a Supreme Court clerk has a lawyer-client relationship with anyone. There are obviously other reasons why it’s a breach of confidentiality but I don’t think that is the right one in this case.
That makes sense to me. I wonder exactly how tight the security is over the SC draft material, given that they probably weren’t seriously expecting a breach.
I wonder if it’s kind of like, for example, my car security. Of course, I take reasonable precautions - I always lock the doors and keep the keys with me. But if I really thought there was a high likelihood of theft, I’d take much more serious steps; I’d get a steering wheel lock and put a GPS tracer on the car.
Maybe (and of course this is just a WAG, perhaps I’m completely wrong) that’s how it has been so far at the SC - they have ordinary security precautions in place, but because they never really thought a leak was a big risk, they didn’t take extraordinary measures.
I bet they will from now on, though.
I also think @wolfpup offers a plausible scenario. If it were me in a position to leak, and I thought the greater good would be served by doing so, and I could afford it (not financially but in other terms - for example I didn’t have a child at home depending on me) I’d probably risk a few years in jail to be the leaker.
I hope a SCJ did it to sound the waters, and I hope the public reaction males them change their minds. Yes, I can hope in one hand, sneeze in the other, and see which hand gets full first.
I have no idea how widely drafts of upcoming decisions get circulated but I would be shocked if it was a wider group than the clerks and justices (especially for one as dynamite as this one is). I cannot imagine someone prints the decision up and then drops it on Sam-the-copy-room-guy’s cart to make 20 copies along with a notice to be posted in all the break rooms that people should not microwave fish.
AFAIK a leak like this is unprecedented. If their operational security was so lax that such documents were not hard to come by then the bigger mystery is that no leaks happened before.
Another vote for it being a clerk. I’m speculating it was somebody who was appalled by the decision and leaked it before it was officially issued to whip up public opposition and perhaps shake the Justices into taking a step back. Or scare the Republicans who have to get-re-elected into telling the conservative Justices to back off.
Breyer himself has nothing to lose. It could very well have been him. That was my initial guess.
I seriously do not understand the argument that a liberal leaked it in order for public opinion to sway one or more of the conservative justices.
Which justice? Does Clarence Thomas, for example, seem like the type of guy to change his ways because some women are upset? Brett Kavanaugh?
Public outrage is far more likely to lock everyone in to their positions because they don’t want to look like they are influenced by such things. There’s zero chance of any justice changing their position now.
I think it’s far more likely that someone on the conservative side was concerned about a conservative defector, or even someone pushing to soften the language of the opinion, and leaked the draft to lock everyone and everything in place.
Conservatives are the ones who generally don’t give a shit about the rules if it advances conservative causes.
There’s a whole world between those two extremes. IT leaks are not exactly rare. As @CairoCarol says leaks from the SC are rare indeed I can’t recall one ever before. And we all know what happens to security when there hasn’t been a security breach for decades if ever.
I doubt anyone leaked it to influence anything in any considered way. Anyone on the SC knows Roe v Wade and every argument for and against it backwards, sideways and inside out. And they know full well how divisive and controversial it is and there is nothing that last second popular protest is going to tell them they didn’t know already.
Someone leaked it because they were ecstatic or appalled and wanted the world to know and couldn’t wait. Or just wanted to watch the world burn.