Also, the fact that the leak was to Politico rather than to (for example) the Washington Post strikes me as unlikely if the leaker was from the liberal side of the aisle.
Pushing the announcement of the decision to November means that the Court would have already begun its next term. Would Justice Jackson then be required/able to vote on the ruling? I genuinely don’t know — I’m not aware of any precedent for the Court delaying a decision so long.
I’m not. I think all of the justices are extremely image-conscious. They all really want to be taken seriously as legal minds.
And I believe Kavanaugh cares more due to the perception that’s he not that bright and was solely a political pick. And that he clearly has issues with getting overly emotional.
That said, I doubt he did it. For one, he’s always seemed to be rather on board with overturning Roe. For another, I don’t think he would come up with a scheme like that. Even if he’s more intelligent than those perceptions I mentioned above, he doesn’t seem to be the savvy political type.
I tend to think it was someone on the progressive side, and likely not a justice. Maybe a law clerk who is a true believer. But most likely someone else who got their hands on it.
And I do think it’s probably on the whole more likely a positive to get it out there earlier. Motivation on this point has been lacking in the Democratic party.
This angle wouldn’t work. SCOTUS has confirmed the draft was real, so if the June decision upholds Roe, everyone will credit the leak & resulting outrage for changing the justices’ minds.
They needed time to think about it? Or time to cover their tracks? Maybe they have since moved on so know they’re less likely to be under suspicion. Time will very much help the leaker – it will be much harder to identify the leak three months later. Most systems track access & changes to files, but how long are those records stored? And trying to figure out who had hands on the actual document 3 months ago will be extremely difficult.
Or simply the opportunity arose and they thought they could get away with it so zoinks.
Which would make sense, for it to be someone who did not have that whole “death before disclosure” mentality drilled in so hard, and would be more willing to go for the “OMG look at THIS people MUST know!!!” reaction.
My money would be someone not directly in the legal department such as someone on the IT staff. There would be a dozen or so administrators that would have access to all files on the server(s). It would have to be an admin because they’ll be operating under a least privilege policy and help desk grunts don’t have a need to access all file storage resources.
IT also aren’t automatically bound by confidentiality laws like lawyers and aids are. All they’ve got to worry about is anything they’ve signed off on contractually.
If your theory is that Brett Kavanaugh was on board with overturning Roe and Casey back in February, but now might reconsider because this leak revealed to him that pro-choice people wouldn’t like that, then I disagree.
If that’s not your theory, then what are you even talking about?
Getting back to this point, here’s the counter-point from Justice Scalia, as told by one of his former clerks:
The other justices might not be so blunt, but put it this way: a clerk applies for a job at a big firm and the firm calls for a routine reference check from the clerk’s former justice’s chambers, just to confirm that they did in fact clerk for the Justice. And the calls never get returned ….
So, it’s not about any laws or regulations or anything like that? Just threats of professional retaliation?
I bet that if we ever learn what the Supreme Court document control policy looked like when this leak occurred, we’ll be shocked at how out of date and full of holes it was. This seems like the kind of institution that only updates things when something bad, like this, happens. So every couple decades.
Sorry, forgot to include the link to the CNN article, which makes the point that no crime was likely committed, since draft opinions aren’t covered by federal secrecy laws.
But I wouldn’t call it professional retaliation. The basic point when I’m asked to give a reference for a law student, as a lawyer who supervised them in our office, is: « Anything that suggests this person wouldn’t make a good lawyer? »
As mentioned earlier, in my opinion, conscious breach of confidentiality is a big red flag on that issue, that goes directly to qualification.
So a future GOP nominee?
I don’t see either of those characters being Pub.
Too ethical?
No I think he may have wanted language that made the majority opinion look better without being meaningfully different. Or he Roberts and Alito debated a bunch and he was swayed from a compromise position to one closer to the leaked opinion (or vice versa) and didn’t want it to get out that he signed on in principle to Alito"s unvarnished opinion.
Also I don’t think he had any illusions about how pro-choice people would take this. More the circle of legal experts he runs with and whether they would think less of him for signing on to a ruling this extreme and with this little equivocation.
BYW on the security stuff something I saw (on reddit fwiw) was that there are some basic opsec things you can do like distribute drafts with unique typos that would make it almost impossible to leak this without getting caught, which clearly weren’t done.
I’m still not sure what you’re saying here.
In February, Kavanaugh signed on to Alito’s draft majority opinion.
Is public reaction to the leak of that information likely to get him to change his position or will he double down? He seems like the type to dig in to me.
Either way it’s likely a shot in the dark that won’t wind up having an effect.
It seems likely it was someone who has intimate knowledge of what Kavanagh was waffling over, if he was, who thought it had a punchers chance of swaying his opinion.