The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I have now had a few hours to think through the apparent leaked Dobbs majority opinion. (My tentative thoughts are here). Let's play a game of whodunnit?
To begin, there are a few clues that can be derived from the document itself. First, at the top of the first page is the phrase "1st Draft." And it is highlighted in yellow. The rectangle around the phrase is perfectly angled. This was done with a digital highlight feature, and not a real highlighter. I can reasonably infer this document was printed on a color laser printer. Most people would simply print a 98 page document on a traditional black-and-white printer. Most high-quality color printers leave a watermark (tracking dots) on every page. Even though this document was scanned by Politico, the authorities can probably trace it.
Second, in the upper right-hand corner of the document is a distribution list. The document is from Justice Alito. It was circulated on February 10, 2022. Above Alito's name are the names of the other eight Justices. But none of those names are checked or highlighted in any way. It isn't clear to me that this specific document was ever actually distributed to the other chambers.
Third, Dobbs was argued on December 1, and this draft was circulated about two months later on February 10, 2022. Now, this draft is nearly three months old. There may have been changes. On quick skim, I found at least one typo. On page 61, the draft opinion cites Ferguson v. Schrupa; it is Ferguson v. Skrupa.
So whodunnit? I can think of three possible answers.
First, this leak may have come from the chambers of a liberal Justice. Under this theory, the leak was designed to create a backlash, and pressure a conservative Justice to defect from Alito's opinion. But this theory makes no sense. If anything, this leak from a liberal chamber will entrench the five-member majority to avoid the appearance that the pressure campaign worked.
Second, this leak may have come from the chambers of a conservative Justice. Under this theory, the leak was designed to prevent a conservative Justice from defecting from Alito's opinion. But this theory also makes no sense. If anything, this leak from a conservative chamber would infuriate a swing Justice, and push them out.
Any clerk must know that this sort of leak would ruin their careers, and lead to possible disbarment or criminal prosecution. And a Justice must know that authorizing this leak would probably lead to impeachment proceedings. I do not think this leak came from a chamber.
There is a third option: the leak did not come from a chambers. I hinted at that theory in my initial post. Rather, the leak may have come from someone with access to the Supreme Court's draft opinions. And history suggests that this sort of leak is possible. Josh Gerstein (yes, that Josh Gerstein) wrote an essay for Politico tonight about past leaks from the Supreme Court:
In 1979, ABC News Supreme Court correspondent Tim O'Brien went on air with reports predicting the outcome of two decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the court had breached protocol, and a Government Printing Office employee involved in setting type for the court's rulings was transferred to a different division. The staffer denied leaking any information.
Here is my completely uninformed speculation. This document was typeset and printed in a formal fashion. This document was also likely not circulated to chambers, but was floating around. And whoever had this document does not yet have access to the more recent drafts, or draft dissents.
The Chief Justice should get to the bottom of this situation immediately, and be transparent about the investigation.