The Volokh Conspiracy

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Whodunnit?

Speculating on how the apparent Dobbs first draft from Feb. 10, 2022 was leaked.

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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.

NEXT: Making Sense Of The Apparent Leaked Opinion In Dobbs

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  1. Too bad the leaker didn't sign it as QAnon just to blow everyone's mind.

    1. Libs should support the idea of a new Judiciary Act with an even number of Justices, moving it to Wichita, the middle of the continental US, and increasing the number of Justices to 500 for the wisdom of the crowd and a legislature size court. I also suggest banning any nominee who has passed 1L. That intelligent, ethical student has been turned into an amoral dumbass.

    2. I do approve of this as the comedy option.

    3. Funny, but the story wouldn't have been published as it was based only on a pseudonymous leak.

  2. You're presuming that the printed copy was made by the leaker and then provided to Politico. It could just as easily have been provided in digital form to Politico, then printed and scanned by them.

    1. I mean it can’t be digitally sent, assuming the court has even the barest security measures.

      1. I doubt that the Supreme Court has the level of security that would prevent digital copies from making their way to reporters.

  3. Being the leaker would not destroy a clerk’s career. Instead it would open up extremely lucrative opportunities for them as a pundit.

    You may not like that, but that us just the way it is with a decision of this nature.

    1. I don't think that is the career path sought by most ambitious SC clerks though. I don't know how careful they are with control of versions of these docs, so I don't know how likely the leaker is to be found. I do think being able to deliberate privately is important to the SC, so I hope the leaker is identified and punished somehow though. But I don't really think the leak means the sky is falling and the end of the world as we know it.

      As to the ruling, dunno. I'm pro-choice, and want abortion to stay legal. Like a majority of Americans I'm OK with political compromise leading to some restrictions. I think abortion up to some point is a right, but I am dubious that it is a *constitutional* right. So huh. Will clearly be a contentious mess, but maybe having it in the political sphere will result in some kind of workable compromise.

  4. Who TF CARES who leaked it?? That is the province of Extreme Naval Gazers, who DO NOT CARE about women. What a complete false flag this entire thread is. Volohk is obv a guy with no real female connections.

    1. Don't come here much do you?

    2. As much as liberals like to believe that they are the only party that Cares About Women, there are a lot of women opposed to abortion who don't think that means they can't also care about women. Besides, it matters who leaked it to determine if it is an actual leak. Unless you prefer going into full-blown hysteria of something that may not be legitimate.

    3. That is the province of Extreme Naval Gazers, who DO NOT CARE about women.

      Yes, because one cannot care about more than one thing at a time. Well, not someone with your extremely limited cognitive abilities, at least.

      What a complete false flag this entire thread is.

      If there are any reasonably intelligent and/or educated adults in your home, have one of them explain to you what "false flag" means, as you clearly have no idea.

      Volohk is obv a guy with no real female connections.

      How exactly did you arrive at a conclusion about Prof. Volokh based on a piece that was written by someone who is not Prof. Volokh?

  5. What a pleasure to see members of the legal cartel howl at this demystification of the high priests. Transparency and humanization of the least democratic branch well serve the republic.

    1. Now that the court has been packed with Catholics, will they revisit the ruling that abolished laws banning contraceptives? The sale of contraceptives is opposed by The Church, and the right to contraception is not an enumerated right. Screw the Ninth Amendment, which is held in low regard by conservatives and liberals.

      1. If the most they will do with abortion is take the Stephen Douglas position and leave it to the states, not caring whether abortion is voted up or down, what makes you think they're going to interfere with the sacred right to artificial contraception, as recognized ("retained by the people") at the time of the Constitution?

        https://iusetiustitium.com/little-giant-constitutionalism/

  6. Lets say that this was leaked by somebody who did the typesetting, as Josh speculates. Why the hell are they typesetting a draft opinion? Why does it need to be in official format until it's ready to be released?

  7. Obviously a leftoid since there is nothing to gain for a conservative leaker and it went to Poolitico. Maybe a clerk, perhaps even with the tacit consent of a justice. The goal is to rile up the mob to intimidate for the midterms and maybe an outside chance to scare a swing vote. They don't care if this ruins their career since they will be feted as a hero to the left regardless of how clearly amoral and opportunistic it is.

    1. The goal is to rile up the mob to intimidate for the midterms

      Um, you understand that the midterms aren't until November, right? Why would releasing a draft now, rather than waiting for the final decision in a few weeks, have any effect on the midterms?

    2. Obviously!

      People do all sorts of stuff for emotional reasons for no strategic gain.

  8. No staple marks on the latter half of the appendices and partway through the stapling becomes erratic. Almost has to be a clerk. Maybe one who was stapling a copy together into 10-20 page sheaves and lost control of their emotional state partway through?

    1. Or the guy who cleans up after the judges and clerks was pissed for not getting any recognition, and so when he found the draft lying around, dropped by accident, he put in a call to Politico.

  9. It wasn't just the draft decision that leaked. The Politico article also mentions that four other justices have voted for this decision, and that is NOT reflected in the document itself. Someone with better knowledge of the inner workings of the court is needed to fully interpret this observation, but it seems unlikely that a print shop typesetter would be privy to this information.

    1. It doesn't take a Supreme Court insider to count to 5.

      1. I imagine It does take a Supreme Court insider to get cited as "A person familiar with the court’s deliberations" in the Politico article.

        https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

        1. Repeating gossip is not citing a source.
          Named, verifiable, reliable is what makes a source.

  10. It seems to me you have to ask the question:

    "Has the USSC computer system been penetrated?"

    1. I thought those old farts still used clerks.
      And the clerks used quill pens and parchment.

  11. Truly secure computer systems are annoying to use, and you can't work from home. I expect modern corporate quality security instead of 20th century NSA quality security.

    1. I've been in IT for most of my professional life. It is axiomatic that the more onerous you make security, such as long and complex password requirement, the more likely it is you will find it written on a Post-It note under the keyboard.

      1. The complex password written near the machine at least protects against some remote attacks, and against casual visitors if you take basic precautions. I remember a reporter sent to cover Richard Stallman got a shot of him in front of a whiteboard with a shared root password written on it.

        1. Yes, but it doesn't protect against the person in the next cubicle, or the prying eyes of the night cleaning staff. It is why I have always favored the recommendations of MI6, which is a long but memorable phrase is much better, and less likely to fall victim to a brute force dictionary attack. Say something like "mydogissodumbhestaresatwalls" is going to take much longer to find than "X1z!@5y"

          1. Note to self: try mydogissodumbhestaresatwalls next time I'm at Currentsitguy's house.

          2. Length is the only protection.
            Hackers don't guess at passwords, they use programs.
            A long password, unchanged, is better than some mythical "at least one number, one special character, mixed case, change every three months" dictate. Those are the passwords that get written down.

  12. It is technically possible to embed a watermark that survives printing and scanning but does not scream "incriminating!" to the naked eye. I don't know if there is commercially available software to do it. Imagine small adjustments to word spacing, page number placement, or font varieties. None of these survives retyping, but the story is so much better with a printout of the document.

    One of Tom Clancy's novels had a leaker identified by copy-specific changes to punctuation of a document with limited distribution. In the novel, the variation was in a passage that tempted the reporter to quote verbatim. That is more obvious and would upset a Supreme Court justice who just might be a grammar nazi.

    1. That was in Patriot Games, BTW. In the book, Clancy mentioned that it was longstanding practice to alter punctuation so that if they printed a copy of the document it could be identified — but that reporters had gotten savvy enough that they wouldn't print an actual copy. So Jack Ryan suggested using (varying) memorable turns of phrase in the document for the reason you said: so that the reporter would be tempted to quote it and then it could be ascertained which copy the reporter had seen.

  13. Is there any real evidence that this draft is authentic?

    1. I'm hearing the style of writing and the choice of language pretty strongly points to Alito and that it's not something that can easily be faked.

    2. Roberts confirmed that the draft was an authentic draft this morning at around 10am est - of course that was after your post

  14. So, according to this blog post, the leaker is unlikely to be a liberal justice because that would just entrench the five-person majority. And the leaker is unlikely to be a conservative justice because that would just make a swing vote justice infuriated and likely to abandon the majority.

    But how does the swing/conservative justice know who the leaker is and thus know whether to be entrenched in his/her position or ready to abandon ship?

  15. Have to disagree with the analysis as to source.

    First, the current culture of 'leaking' documents to promote leftwing causes has created a generation without fear of consequence. It is not unreasonable to believe that a leftwing organization (of almost any type) would welcome a person who revealed this opinion. (It's also questionable whether the consequences of breaking SCOTUS confidence are truly long term; see the career of E.Lazarus, author of "Closed Chambers.") Thus, a clerk from one of the three liberal Justices' chambers is a possibility. Such a person might believe that the writing is on the wall for the opinion itself, and this is mostly an emotional venting -- not a strategic act.

    Second, the analysis leaves out the chambers of the vote in the middle (likely Kavanaugh). A left-leaning clerk in BK's chambers might be seeking to drum up popular outrage in order to persuade the Justice to move over to Roberts' position. (I don't see any value in a conservative clerk leaking, and I also find it unlikely that a Roberts clerk would leak.)

    Third, the reporting by Politico suggests that they have vetted the source in a way that leans against someone in the printing office. On the other hand, someone in the Reporter's office responsible for the preparation of the syllabus makes sense. This is a very long opinion, and the syllabus would need to be prepared in advance of printing. Thus, you would expect the Reporter's office to get the majority opinion draft far enough in advance to prepare the syllabus so that it can be printed with the final slip opinion.

    So three possible culprits in my view. Because of the decision to leak to Politico, I lean against strategic leaking; because the Reporter's office is typically staffed with career people, I think that is somewhat less likely; I think the highest probability is one of the clerks in the chambers of the three liberal Justices.

  16. "And a Justice must know that authorizing this leak would probably lead to impeachment proceedings."

    How stoned out of your mind do you have to think impeachment would be on the table for this? It's bad form, but it's not criminal and I'm not even sure it even violates the Code of Conduct for federal judges other than maybe Canon 3A(6) regarding public commentary on pending matters, although in the context of SCOTUS after oral argument the policy rationale for that seems rather weak since a case is already in a terminal disposition by that point so there's no issue about affecting a jury or trying to help one litigant over another in the briefing or oral arguments.

  17. I don't think it's at all evident that it wouldn't/won't convince Kavanaugh (almost as squishy as Roberts) to change his mind.

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