If true, and if ever discovered, Alito’s name would be mud. If discovered before a final publication, releasing an opinion written by Alito would destroy the last vestige of the Supreme Court pretending to be an impartial judicial body. Do you think Alito would be willing to take that risk, given that it was already looking like his view would be upheld?
Alito, IMHO, is the most conservative of the justices – I’m not counting Clarence Thomas, whose brain (such as it is) is entirely controlled by Republicans through remote control, as well as by his imbecile fascist wife.
There was a leak back around 1979 in one case, and Chief Justice Burger instituted an inquiry. They thought that it had been leaked by someone in the print shop, but couldn’t prove it. (Back then, the Supreme Court had its own linotype print shop, precisely to protect confidentiality.) How it works now, in the modern IT world, I have no idea. [Can’t remember the name of the case; saw it in one of the many articles I read today instead of working while researching court confidentiality.]
There was also a leak in Roe v Wade itself: a journalist at Time broke the story, but because Time is a weekly, the story only came out a few hours before the decision itself.
Has nothing been done since? If the leaker had this in February, as any justice or clerk probably would have, what were they waiting for? Even if they were wrestling with doing it for a couple months was there no newer draft to be had? Is there some strategy to timing the release now?
I do not know. Maybe that was the final draft and the SC just sat on it. I can’t figure out the timing assuming someone had their hands on it since February.
To me your line of thinking in this post makes me think it likely this was done by one of Breyer’s clerks. Most, if not all, of them will be out by the end of the term in June/July and one might think they could get away with doing this by waiting to such a late date.
I think we also have to consider this was given to Politico anonymously and they got enough confirmation to consider it something they could publish.
I would be very surprised if Politico published a bombshell like this without some good reason to think it was real. Maybe they rolled the dice but this is so big I have to imagine this went all the way to the top for approval and they’d want assurances it was the real-deal. Likely they have all seen the movie “All the President’s Men” too and wanted to be sure.
FWIW justice Roberts has confirmed it is a real draft and not some made-up thing.
My guess was someone from Alito’s office leaked it. So that even if the final version gets toned down, his magnum opus still gets read by the masses. It also locks in his four colleagues who voted to overturn.
I don’t think it was from the liberal side because, as someone posted above, conservatives these days are more likely to break the rules, screw tradition and shit on norms as long as it gets them what they want.
Conservatives may not give a shit about the rules but they care a lot about staying in office. There are four hundred and sixty-nine Republicans in Congress who are up for election this year. Plus Republicans who are challenging incumbents…
If public opposition looks like it’s going to sway elections to the Democrats, Justices are going to be getting phone calls from people they do listen to.
That was the whole point of putting these guys in the court, wasn’t it? They’re supposed to do what the Republican party wants. And the Republican party may decide it doesn’t want the Roe decision being overturned this year.
Normally, this wouldn’t be a problem. The decision could be held up and announced after Election Day. The Republicans could wink to their supporters and say “our justices are working on Roe as we speak” while also telling everyone else “the court is an independent body that makes its own decisions”. But this leaked document rips off the cloak and makes this a campaign issue.
Could they delay like that? (I really do not know)
From what I read the decision is due in late June (2022). I think the court has a schedule of when certain things happen and this is when that was supposed to happen.
I’ve always assumed the Supreme Court sets its own schedule on when decisions are issued. As far as I know, there’s no rule that says a decision has to be issued within a fixed period of time.
The Roe decision was issued thirteen months after the case was initially argued before the court. And in the Brown decision, it was seventeen months.
That’s a reasonable analysis by a nonlawyer, but it’s just not how it will be viewed inside the profession. It doesn’t work here the way that Northern Piper described, but the principles are the same. A court has to be able to trust the clerks and staff to function. It is unthinkable to leak this kind of information in
There would be copies with clerks and justices, and staff who distribute those copies, and make requested edits, etc. And those copies are probably not locked up or shredded when someone goes to lunch, or home for the night. So the list of who had access to a copy is probably pretty congruent with “everyone who has access to the building.”
I don’t think there’s a chance in hell that it was one of the justices. I can’t emphasize enough how big of a betrayal this leak was.
I agree. Not only do I think it extremely unlikely that one of the justices was the leaker I think that laypeople overestimate the extent to which any given justice would see it as worthwhile, particularly given the potential downside.
Being a justice in the top court of the land is nothing like being a politician. Once you’re on the court, it doesn’t much matter if you are seen as a “flip-flopper” or if the public knows you changed your opinion (or didn’t) or if the media criticises you or people talk about you in negative terms on Twitter. You cannot be removed from the court for any of these things.
I think that laypeople think about this issue in the same way as they would think about a leaked policy document from a politician. Politicians obsess (and have to obsess) about their public image and what the public sees as their policy positions. SC justices have no such concerns.
I agree with this. That was my immediate suspicion, and nothing has emerged to change my view.
For me, it’s the timing that makes the above the likeliest scenario. If it were an appalled liberal clerk, there was no reason to sit on this from February to now. But if it’s a conservative activist (my money is someone on Alito’s staff), they would have spent that time gritting their teeth and wringing their hands through all the negotiations and discussion and possible wavering that would have happened over that period, hoping for the opinion to survive the process. For a decision that was evidently slated for June release, this is about the time the final choices will need to be made, meaning that this is the crisis point where Alito’s masterpiece might be watered down or replaced.
It’s theoretically possible that the person who acted indiscreetly isn’t even the person who gave it to the reporter. For all we know, the motive was “look at what I get to see before everyone else!!” and whoops, now a reporter has it.
Nina Tottenberg, the NPR reporter who covers the supreme court did a piece on this. She agrees that all the justices, all their clerks, and most of the supreme court staff would have had access.
She also said that if someone made an illicit copy of one of the physical copies lying around, there might not be any evidence to speak of, and there’s a good chance we’ll never find out. And also that even if the investigation uncovers something, she thinks the court may not say anything.
Yeah, she emphasized how huge a betrayal is was, and how unthinkable. She compared it to cheating on your spouse.
But that’s why i think it’s one of the justices. Because people DO cheat on their spouses, if they care enough. Whereas the clerks are younger, and typically ambitious, and it would completely destroy their career of anyone seriously suspected one of them of having done this.
I suppose staff is a possibility. A custodian or receptionist might be delighted or appalled by this decision, and want it known for some reason. Being caught would certainly be a black mark, but the tell-all book might replace the future income lost.
Could it be that someone hoped to influence not the SC, but elected officials who could use weeks of time to work on legislation before this goes into effect?