Who leaked the draft abortion decision?

[Projammer]

I was going to say Reader’s Digest, but I like the graphic novel idea much better.

Maybe in a Frank Miller Sin City style. Lots of bold black ink.

[Northern_Piper]

@Whack-a-Mole

Anything is possible but I would think this is unlikely. They’d have to have read it to know there was something valuable there and it is 98 pages long. That or they have to be familiar enough with the title Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al. to know what was contained with in (unlikely).

I disagree. The people in courthouses know what’s going on, even if they aren’t judges and clerks. They know the verbal shorthand: “What’s Dobbs?” “That abortion case that the media were all here for last month.” “Oh, right, I remember.” In my experience, the bailiffs sitting in the back of the court room are often some of the best informed about the cases, and have pretty shrewd ideas of what is going to happen.

[Buck_Godot]

@Princhester

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 think in general you are right which is why I don’t think the court is particularly disposed to helping out Trump. Its idiological not partisan. However in this case imagine being known nation wide as the traitor vote that switched sides and allowed tens of thousands of children to be murdered every year, in a nation in which rhetoric about second amendment solutions has been normalized and violent actors are lionized. I think there would be an incentive to resist rocking the boat.

[puzzlegal]

I suppose it’s also possible it was leaked by mistake. That is, someone with access took a paper copy home to study, and their kid found it or something. But I assume they are expected to take reasonable precautions to prevent that.

[China_Guy]

Jesus, basic security like watermarking the draft was not used. Nor a more common canary trap (change and track a few words so that Thomas gets one version and Kavanaugh gets a slightly altered worded version).

[Senegoid]

What I posted a few hours ago in the NSRIOTD thread, but fits better here:

NEW Stupid Republican Idea of the Day (Part 2)

There is also an opinion kicking around in the media, speculating that a die-hard conservative staffer leaked it. The logic is something like this: The opinion was supposed to be still a secret, circulating internally among the justices for further debate and perhaps modification. There is some chance that a more moderate Repub on the court (read: Roberts) could get them to water it down a bit before they release it. By leaking this hard-nosed hard-right opinion now in its current form, it …

Includes link to HuffPost article discussing 4 speculative theories of who leaked, that are making the rounds:

Who Leaked The Supreme Court Draft? Here Are 4 Theories

[Senegoid]

@Lance_Turbo

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.

This, possibly. The Huffpost link I posted just immediately above discusses this theory, among others.

[Cervaise]

As a side comment, I have to say that I find it completely demented that the “who leaked it” question seems to be a much bigger deal in the national conversation than the grotesquely awful legal thinking that has been illuminated by the leak.

But as this thread is specifically about hashing out that mystery, I’ll leave it alone.

[Whack-a-Mole]

I’ve seen plenty on the grotesque legal reasoning too. This is the story du jour and is spinning all sorts of stories.

[I_Love_Me_Vol.I]

Yes, and that’s when we’ll see that the leak wasnt anyone who had (legal) access at all. It was simply hacked. Boring hack job. Prolly Russia.

[SpacemanSpiff_II]

Good article from HuffPost, on the whole. But I think they’re ignoring the real reason a liberal law clerk would have leaked it, i.e. to provoke a backlash and frighten off a wavering majority justice (they suggest “anger and pique” instead). And the notion that conservatives are uniquely prone to leaking court intrigue seems very shaky. As to timing, it’s possible that there was a lot of maneuvering and discussion between February and May, but that as the votes seem to congealing someone took a shot at a Hail Mary.

That said, it’s also possible that the reverse is happening, and that as the votes have gotten increasingly shaky, someone from the majority side tried to firm it up.

If I had to bet, I would have to go with liberal law clerk, but I wouldn’t bet unless I had to.

One important note at the end of the HP article, which is relevant to a lot of the speculation in this thread.

The Politico article contains background information from “[a] person familiar with the court’s deliberations,” that explains “that four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.”

That information is crucial to the story and is likely information that could only be learned as a justice or law clerk, or from them.

[The_Other_Waldo_Pepper]

@SpacemanSpiff_II

Good article from HuffPost, on the whole. But I think they’re ignoring the real reason a liberal law clerk would have leaked it, i.e. to provoke a backlash and frighten off a wavering majority justice (they suggest “anger and pique” instead).

Couldn’t it be to provoke legislative responses before the judicial decision takes effect?

[puzzlegal]

@SpacemanSpiff_II

That information is crucial to the story and is likely information that could only be learned as a justice or law clerk, or from them.

I agree that that information is crucial, but I’m dubious that it wasn’t known to anyone but the justices and their ckerks,

[SpacemanSpiff_II]

Is there some standard of practice here which would require making clear when you’re purporting to quote someone, that you’re actually quoting something they themselves quoted from another source, and it’s not their own words?

[HMS_Irruncible]

@puzzlegal

I still can’t figure out why. Who benefits from the leak?

Radical liberal justice: would want to raise the alarm about an egregiously bad decision, though to what end I’m not certain.

Radical conservative justice: would want to firm up any possibly squishy defectors in favor of the opinion, by creating a situation where they’d seem to be bending to public pressure if they changed.

Moderate conservative justice: might be fine with killing Roe by a thousand cuts, but not with Alito’s bullshit reasoning.

Moderate liberal justice: no convictions strong enough to motivate them to leak.

Clerks: various motives as above, but balanced by the likely punishment if they were discovered

Ginny Thomas: has already demonstrated that she’s a whackjob who has as much impunity as her husband does.

So there’s the whole game of Clue right there. Professor Mustard with the scanner in the cloakroom.

[Crane]

@puzzlegal

I suppose it’s also possible it was leaked by mistake.

Like somebody not ‘in the loop’ found it in a copy machine or the insecure trash bin. Somebody who, otherwise, could not have known.

[The_Other_Waldo_Pepper]

@HMS_Irruncible

Radical liberal justice: would want to raise the alarm about an egregiously bad decision, though to what end I’m not certain.

Radical conservative justice: would want to firm up any possibly squishy defectors in favor of the opinion, by creating a situation where they’d seem to be bending to public pressure if they changed.

Moderate conservative justice: might be fine with killing Roe by a thousand cuts, but not with Alito’s bullshit reasoning.

Moderate liberal justice: no convictions strong enough to motivate them to leak.

Clerks: various motives as above, but balanced by the likely punishment if they were discovered

Ginny Thomas: has already demonstrated that she’s a whackjob who has as much impunity as her husband does.

So there’s the whole game of Clue right there. Professor Mustard with the scanner in the cloakroom

I now want so, so much to believe that Politico got it from a liberal Justice — and also from a conservative Justice — and also from maybe half-a-dozen clerks, each acting on their own initiative; and, sure, also from someone’s wife, and also from this or that janitor.

[k9bfriender]

@HMS_Irruncible

Ginny Thomas: has already demonstrated that she’s a whackjob who has as much impunity as her husband does.

I really have no idea what probability to put on this one, but it’s certainly on my radar.

She really, out of pretty much else that could be involved, has the least to lose. Her gains are more nebulous, but just being able to show off to others an advanced copy of an opinion would be a motivator. Maybe she only meant it to be circulated among her fellow activists, but it got out.

In the scenario of it being Ginny Thomas, is there any actual repercussion she could face?

[HMS_Irruncible]

@k9bfriender

In the scenario of it being Ginny Thomas, is there any actual repercussion she could face?

I’m not aware that the leak broke any laws, so I don’t know what repercussions she could face?

In principle, a Ginny Thomas leak automatically implicates Clarence Thomas (because presumably this was his failure to secure confidential materials under his control).

But of course there’d be no repercussions for the Thomases. Should they be implicated here, we would see a complete 180 from the same conservatives telling us that the leak is a dire violation of the Court’s sacred trust. They’d tell us that Thomas doesn’t control his wife, and the opinion was going to become public at some point, and that the Supreme Court has no ethics rules, so suck it, libs.

[Whack-a-Mole]

@k9bfriender

In the scenario of it being Ginny Thomas, is there any actual repercussion she could face?

The YouTuber LegalEagle put out a short (less than one minute video) that says the leak is not illegal no matter who did it. That person may face professional repercussions but not criminal ones.

Is the Leaked Opinion Illegal? #Shorts