The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over at First Things today, I argue that the leak of the Dobbs draft opinion differs from past SCOTUS leaks and poses a much greater threat to the institution. I also venture some thoughts on who might have done it:
In disclosing the draft opinion now, rather than in February when it circulated, the leaker presumably means to do one of two things. First, the leaker might hope that public pressure will intimidate one or more of the justices and affect the outcome of the case. Possibly, the leaker is a conservative clerk trying to keep Alito's majority intact, on the theory that it would be too embarrassing for a justice to change his or her mind in these circumstances. More likely, though, the leaker is a progressive who hopes an angry public reaction will make a member of Alito's majority reconsider.
Alternatively, the leaker might know that Justice Alito's majority is solid and that trying to change anyone's mind is useless. In that case, the leaker's goal likely would be, quite simply, to wreck the Court as an institution—because that is what a leak like this accomplishes. It's not a matter of letting daylight in upon magic and destroying the oracular mystique of the Court. The justices need to trust one another to deliberate effectively. They need to know that drafts can be revised and improved. They need to know, most of all, that they can do their work without external interference, at least until they release their decisions, which citizens are then free to praise or condemn.
Past leaks from law clerks typically have come after the Court has issued a decision. They often seem explained by desires to set the record straight for history or, perhaps, to demonstrate the leaker's own significance (which, as a former clerk, I can attest to be typically little). If they come before a decision, leaks are usually spare and vague, hints at a likely vote tally or outcome. Such leaks do little to change the day-to-day workings of the Court.
But the leak of an entire draft opinion in the middle of deliberations in a vitally important case suggests something very different, a desire either to bully or destroy the Court as an effective institution. After this episode, justices will feel less secure about the confidentiality of their deliberations and think twice about what they put in drafts. The work of the Court will inevitably suffer. That is what makes this leak so damaging, however one feels about the ultimate issue at stake.
Interested readers can find the whole post here.