Well, based on their lying to get the job in the first place, we know they’re liars. The question them becomes, how big a liar are they?
Did they lie to their supporters about being anti-abortion, in order to get the nomination to the Court? At that point, they’re kind of stuck - they have to deliver the vote they promised, but maybe they don’t want to. So they leak the draft, knowing the controversy that will ensue, and this gives them cover to then change their vote. “Oh, Lordy, I simply had no idea this was such an important topic to so many people!”
And Bob’s their uncle. They slid into a life time appointment on the highest court in the land, all on the back of lying to people who they knew would support them no matter what, because of that lie.
Yeah, frankly I wish we would give up on expecting that this process will have any sort of useful predictive effect or in any way bind the nominee, and that Senators stopped using it as a figleaf excuse to go for or against.
Roberts is launching an investigation of this. If it is a clerk, I hope it was worth tanking their law career over because nobody will hire a lawyer that breaches confidentiality like this. The clerk will end up as Saul Goodman or Joe Miller.
The day their identity is revealed, their phone is going to be ringing non-stop with offers to write books or go on TV.
Although I doubt anyone did this for clout. Whoever did this probably felt very strongly about abortion one way or the other and did think this was worth sacrificing a legal career over.
And if it was a Justice, what consequences would they actually face?
If the leak was from a Republican, it was, IMHO, most likely a Justice. If it was from a Democrat, it was, once again IMHO, a clerk or staffer.
Then there’s the n dimensional chess angle. Entirely speculative, but maybe the Republicans leaked this intentionally, to whip up the left wing rage machine, and then when the actual decision comes out in June, they uphold Roe and shoot down the Mississippi law. Democrats get egg on their face for having such a reaction based on rumor, and lose big in the midterms.
Then, once congress is fully secured for the Republicans for the next generation or two, they uphold all the other anti-abortion laws that come their way.
Not that I’m endorsing any particular theory about who leaked the document, to be clear. Just that the notion that Kavanaugh in particular might be swayed by public pressure is not something to scoff at.
Roberts confirmed that this was a real document, but I don’t think that anyone has said that this was the final decision, set in stone.
Because leaks like this are so rare, we have no way of saying that a decision like this wouldn’t changed substantially in the months between being penned and actually being announced.
It would only be dishonesty if SCOTUS officially released this and then rescinded it. Since this was never meant for public circulation, it’s hard to claim that SCOTUS was actually committed to this decision.
Logically, the leak was by a clerk with strongly held pro-abortion rights views, who’s hoping not to be found out but was outraged by the pending decision enough to risk his/her career.
There are potential jobs for such a leaker if discovered, but they should be very limited (staff lawyer for NARAL?). I’d think that most law firms would be extremely uneasy about hiring someone whose conscience impelled them to break confidentiality, as it could affect a variety of criminal and civil cases.
Regardless, I can’t see this leak changing the minds of any justices. If anything it’ll harden their positions.
…oops, sorry, had to clean up the mess left by another exploded irony meter.
Supreme Court justices act very much like politicians, including lying to ensure they are elected/selected. Every one of them knew at the time of their nomination and Senate committee testimony how they were going to vote on upholding Roe v. Wade. These are people for whom personal beliefs on controversial issues are virtually always paramount, who then find legal precedents to justify them.
Supreme Court clerk isn’t a career. It’s something that law school graduates do on their way to a very lucrative career as an attorney. Any short-term payday they might get from this leak is nothing compared to the careers they can expect to have after clerking for a USSC justice.
Logically true only if we all just agree to all of your hidden suppositions. I do not.
We don’t know what has been going on in the Court since February…or even what was going on at the time the draft was written. There are several scenarios under which it would be more logical it was leaked by a clerk on the anti-abortion side, like one of Alito’s own. Here are a couple such scenarios:
(1) There never was really a consensus to overturn Roe completely. Maybe there was agreement among the conservatives to allow the Mississippi law to stand but there were two camps, Alito, Thomas, and one or two of Kavanaugh, Barrett, and Gorsuch who wanted to overturn Roe and then Roberts who wanted to make a more narrow ruling that continued to eat away at Roe while not overruling it. And, then there was at least one justice (Kavanaugh, Barrett, Gorsuch) who weren’t sure. So, given the momentous nature of this decision, they decided to take the unusual step of having Alito write one majority opinion and Roberts write another and then the wavering justices would decide which becomes (or morphs into) the actual majority opinion and which ends up being turned into a partial concurrence / partial dissent.
(2) The initial vote was to overturn Roe and Alito’s draft was the true and only majority opinion but one of more of the above-named conservative justices is getting cold feet and has (or may) move over to Roberts’s side…or maybe that hasn’t happened but the price that Alito has had to pay to get everyone on-board is a much less strident, more wishy-washy, majority opinion.
Under either of these scenarios, the leaker would likely be on the anti-abortion side. And, these scenarios make more sense in terms of the timing of the leak as Cervaise has also emphasized. Otherwise, why leak a February draft almost 3 months later?
I agree with the rest of the legal practitioners here. Non lawyers don’t have any idea just how much this profession relies on trust and discretion
My own phone which I am composing this post on is filled with information which could badly affect the personal and professional interests of a multitude of peoples. I would not be able to do my job if they didn’t have high confidence that the information they shared with me would remain confidential.
For that reason I think the leak comes from some of the support staff rather than the lawyers. As @Northern_Piper has mentioned up thread, a previous leak was traced back to the print shop. So maybe the IT, steno pool (if it still exists, though since most of the SCOTUS judges are older people it might), maybe one of the security guys.
And @Princhester as far as access is concerned, need to differentiate between people who have access because they “need to know” and those who have access since they can easily locate it. The latter is a much bigger group and might be more prone to leaking.
It theorized that a conservative justice leaked the memo as a form of political cover. This document threatens that Roe will be overturned and fires up the opposition. There’s a wave of public protest against overturning an established decision like Roe.
Then the actual decision is issued in a month or two. And it doesn’t overturn Roe. It technically upholds Roe while allowing laws that have the practical effect of making it more difficult to actually get an abortion. In other words, the usual conservative decision.
Normally, the public would be outraged at a decision that made abortions more difficult. But having been set up to think that abortions were going to be made illegal, this decision looks like an acceptable compromise.
But if this was the final decision, then we already know that they aren’t merely following law, as stare decisis is being ignored. This, of course, can be justified at times. But the only justification in this case seems to be that the people who are voting have never liked the law or were explicitly placed to overturn it. We don’t have actual changes in fact to back up the change. It already makes the Court seem like it’s all based on the whim of those in charge.
It would be far better if the Court is going to go beyond the law that they do so by considering public opinion. And, to be frank, that does seem to be what happens. Public support for these monumental decisions tends to predate the law being enforced. Just like every other way that law is made. Practice comes first. Then laws enshrining it.
That’s not to say that’s the only consideration. It’s possible to find that something has popular support but that there is no way to allow it under the current laws. But that’s not the case here. We all know that the reason this is happening is that Republicans got a majority on the Court, and that, if the Democrats had a majority, it wouldn’t be happening.