The Volokh Conspiracy
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On the Leak in Dobbs
How it differs from past SCOTUS leaks and why it poses such a threat
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.
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You know what else is a threat to the institution? Adding fuel to the fire of “SCOTUS is just another way for political parties to get their political priorities adopted”. The alternative to a judiciary with legitimacy isn’t a judiciary without legitimacy, it’s no meaningful judiciary at all. Congress and the President still have the power of the purse and the power of lots of guns if they lose their legitimacy. But the courts without legitimacy have nothing.
Yep.
I would say that some Justices on the court have done more to damage the legitimacy of the judiciary than any two-bit leak ever will.
Mark. Do you have a problem with enacting laws by Congress in secret until their release date? How about with executive regulations? No public access or commentary until after their releases? Can thugs try to intimidated regulators and legislators?
“But the courts without legitimacy have nothing.”
Roe had no impact on the court’s legitimacy I guess. Just reversing it, then it impacts legitimacy.
You mean the Roe drafted by the Nixon-appointee Harry Blackmun and adopted 7-2 with Nixon appointees Burger and Powell, and Eisenhower appointees Brennan and Stewart also in the majority?
You know as well as I do that there’s a big difference between a judgment you don’t like and a judgment on a party-line vote.
“In the nineteenth century, newspapers reported on the Court’s internal deliberations in Dred Scott and revealed ahead of time the outcome of an important Commerce Clause case.”
And leaker was Justice Benjamin Curtis and he also leaked the dissenting opinion, and then resigned.
Another possibility for the reason of the leak could be to dampen the impact while attention wasn’t focused on the court.
Absent any prior knowledge, there would have been extreme focus in late June, and groups of people would have been spring-loaded and all riled up to explode with crazy and unrest.
If the draft option is released unchanged in June, it probably won’t have the same effect on stability as it would have had absent the prior knowledge about it.
I wouldn’t be surprised if one of the concurring conservative justices themselves leaked it, just as a floater to test if the nation could handle it. They want to do it, perhaps only the possibility of unrest was holding them back. This was a way to test it.
The only Justice who advances the legitimacy of SCOTUS is Justice Thomas. The others have their fingers in the air to see which side’s saliva gets dried by the political winds.
If the person that leaked the Dobbs draft was a clerk, then the law school that person received their J.D. from should be removed from the Judicial Clerkship program for at least two decades. And, before again being allowed to recommend students from that school they should be required to show that they have revamped their Ethics curriculum and drilled into their students the importance of confidentiality in the practice of law. If a student’s ideology is more important than their legal ethics they certainly should not be in a clerkship position.
Maybe federal clerkships should no longer be used as an affirmative action program for bigoted conservatives by right-wing judges who engage in viewpoint-driven employment discrimination to hire less-qualified clingers.
And by God the leaker should be prosecuted to the full extent of the law. (I’ve seen no one actually identify any law that the leaker broke. Maybe some NDAs and norms. But a lot of norms have been broken over the last several years.)
The upside of the leak is that it gives states a chance to update their legislation.
Another upside is that it might expedite enlargement of the Supreme Court, enabling it to resemble modern America at least as much as it does Opus Dei.
The content of the now-Court-acknowledged draft is a huge story.
The degraded condition of Court legitimacy is another huge story.
The leak is fun to speculate about, some think. Others prefer it as an alternative to the stories.
I credit Prof. Movsesian for mentioning the Obamacare leak. Not many conservatives wish to acknowledge that one these days — especially not those associated with the Volokh Conspiracy, for reasons that seem relatively obvious.
Prof. Movsesian was not a Conspirator when the Obamacare deliberations were leaked and the Volokh Conspiracy played their part in lobbying for a change of heart among the Justices, but he deserves credit regardless of whether he was familiar with the Volokh Conspiracy’s sordid history in this context.
It’s particularly bad because it creates a window for some crazy to assassinate a Justice (a risk possibly made worse by having an already-confirmed Justice-in-Waiting)
Can you provide the direct QAnon source material on that one?
Thank you.
Another possible motive might be a desire to increase Democratic turnout at this year’s elections. It makes sense if the Democrats think they can install a Congress that would enact a statutory right to abortion.
Of course the Court would likely overturn that law, but it would takie years.
You think that without this leak (potential) Democratic voters wouldn’t have found out about this case before November?
here is my reply in defense of the leaker: https://priorprobability.com/2022/07/07/the-optimal-amount-of-scotus-leaks-is-not-zero-reply-to-mark-movsesian/