Notes on the leak

Commenting on the leak of Justice Alito’s draft opinion in Dobbs necessarily involves drawing inferences that go beyond the facts. My comments restate Steve Hayward’s observations in the adjacent post. These are the facts and inferences as I see them:

• Justice Alito’s opinion was leaked to Politico’s Josh Gerstein. Alexander Ward’s byline is also on the Politico story, but Gerstein is the name I look to. He is a first-rate reporter on legal affairs. His story is to be taken at face value. His story is here. Justice Alito’s draft opinion is here.

• No opinion of the Court has ever been leaked in the Court’s history. The leak represents an incredible betrayal of trust of the Court as an institution.

• The key quote pulled from Justice Alito’s opinion: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

• This is the key quote from Gerstein’s story: “A person familiar with the court’s deliberations said 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. The three Democratic-appointed justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.”

• When Roe itself was pending before the Court, as I recall (and I am writing from memory on this point), Chief Justice Burger originally opposed the result and reportedly joined the majority opinion to make it 7-2. He wanted the Court’s majority to appear solid and unassailable. In such a momentous case, he gave priority to the Court as an institution.

• Burger’s concurrence in Roe reflected both wishful thinking and an effort to limit its impact: “I do not read the Court’s holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.”

• The Washington Post reminds us of a wrinkle in the current story. The result in Roe was leaked on background by a law clerk to a Time reporter shortly before the Court’s opinions in the case were released. Gerstein writes on past Supreme Court breaches in this story. The breach involved in the current story is incomparable.

Roe itself was an indefensible opinion that has done incalculable damage to the Court as an institution. Professor John Hart Ely’s classic Yale Law Review article “The wages of crying wolf” is the classic statement of Roe‘s misbegotten nature.

• Overturning Roe would return the issue of abortion to the states. It would not itself outlaw abortion in the country or in any state.

• I can’t imagine what political advantage is to be gained by leaking the opinion 60 days before it would have been released in due course. Whatever advantage is to be gained by the leak is de minimis, as lawyers say, in comparison with the damage it does.

• Whoever leaked the opinion and the related news of the Court’s deliberations is seeking to affect the politics of the situation beyond the Court.

• Whoever leaked the opinion cares more about the politics than the Court. The leak is incredibly destructive of the Court as an institution. I should like to think that whoever is responsible for the leak is “eyeless in Gaza,” as Milton wrote of Samson.

• My first thought upon hearing the news was that the leak was attributable to Justice Sotomayor or a law clerk who works for her. I cannot believe a law clerk would leak the opinion on his own, but I can’t believe a justice would leak it either. We are left in the realm of sheer speculation. Steve’s update 2 bears on the question and points toward a law clerk, but does not take us beyond sheer speculation in the current case.

• I wonder whether the leak will have an impact on Chief Justice Roberts’s vote in the case. Again, we are in the realm of sheer speculation.

• The leak of Justice Alito’s opinion creates a crisis for the Court — i.e., for Chief Justice Roberts. Chief Justice Roberts will treat it with the appropriate seriousness and do what can be done, but what can be done will not undo the damage the leak will do to the Court.

• On a personal note, I agree with Professor Ely’s critique of Roe and with every word of Justice Alito’s leaked draft opinion, whatever its fate.

• One more personal note. I served as a law clerk to a federal appellate judge for two years after I graduated from law school. At the time of his death he was the longest serving federal judge in the United States. My first week on the job he called his three new law clerks into his office and told us approximately, among other things: “You owe me a duty of confidence. If you can’t abide by it, get out of here now.”

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