The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
By now, you should have seen the Politico story that links to a purported majority opinion in Dobbs. Yes, there was a leak. No, I am not going to link to the story. Here are my tentative thoughts.
First, where did the leak come from? Most people are presuming this leak came from someone with access to the opinion, such as a Justice or a clerk. That presumption is probably correct, but it is also possible there was some illegal exfiltration of the document. I don't want to make light of the situation, but a person self-immolated on the steps of the Supreme Court to draw attention to environmental justice. People who are fanatical about abortion may go to great lengths to support their cause.
Second, Roberts has an absolute obligation to conduct a thorough and transparent investigation. And at the end of that investigation, Roberts must publicly identify the persons who are responsible for this leak–that includes Justices and clerks. Heads must roll. Clerks cannot fall on their swords to save their bosses. Anyone implicated in Leakgate (yes, I dubbed a term) should be referred to the Department of Justice for potential criminal activity, including theft of government property. And now there may actually be a need for impeachment proceedings. If Roberts cannot resolve this situation, he must resign. Yes, I said he should resign two years ago, but now I really mean it. A resignation would mean giving Biden another Supreme Court nomination. So be it. I don't care. Roberts has been an utterly ineffective Chief, who will never fill the shoes of his predecessor, Chief Justice Rehnquist. It's time to hang 'em up, Johnny. Not even Warren Burger presided over such a dysfunctional building. Can anyone say Chief Justice Garland?
Third, we may not be done with leaks. Politico only published a purported majority opinion from Justice Alito. And per Politico, it was joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. We do not know how the Chief will vote. What if subsequent to this draft, one of the votes in the majority changed–as WSJ warned about? What if there is another circulating concurrence, or plurality opinion? If the majority opinion leaked, other separate writings may leak.
Fourth, Politico got the scoop. Not the Washington Post or New York Times or WSJ or NPR. Or, perhaps other outlets had a copy of the opinion, but only Politico was willing to run it. I still think WSJ had the opinion last week, in light of their editorial. The Supreme Court is in worse shape than I could have imagined.
Fifth, the Court should issue the Dobbs opinion as soon as possible. Do it tomorrow. Don't wait till Thursday, or next Monday, or the end of June. The longer this process drags on, the worse the Court will be.
Sixth, if any members of the majority changed their vote in response to the leak, that change will be seen as a direct response to this leak. I can't quote Chief Justice Rehnquist's admonition in Casey enough.
The joint opinion's insistence on preserving the form, if not the substance of the rule, can just as easily be viewed as a surrender to those who have brought political pressure in favor of that decision. Once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.
At this point, the Court is stuck. The only way to escape the bottomless pit is to fight back against a campaign to alter votes.