The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court leak continues to defy any rational explanation. A conservative leak to hold five would backfire. A liberal leak to break apart the majority would backfire. The leak hurts conservatives and hurts liberals alike. But then again, why presume the leaker was rational–or at least rational, as I understand it. Perhaps the thinking was different.
The leaker may have been channeling Publius Decius Mus, who wrote the infamous essay, The Flight 93 Election.
2016 is the Flight 93 election: charge the cockpit or you die. You may die anyway. You—or the leader of your party—may make it into the cockpit and not know how to fly or land the plane. There are no guarantees.
Except one: if you don't try, death is certain. To compound the metaphor: a Hillary Clinton presidency is Russian Roulette with a semi-auto. With Trump, at least you can spin the cylinder and take your chances.
Whoever decided to leak this document no longer cared about the outcome in Dobbs. Nor did this person worry about harming the Supreme Court itself. Institutional damage was a feature, and not a bug of the leak. Rather, the goal may have been to destroy the Supreme Court as we know it in order to (hopefully) save the nation.
Update: Elizabeth Warren's tweet captures my sentiment:
Right-wing extremists have hijacked the Supreme Court of the United States. We must #ExpandTheCourt to rebalance it and defend our basic rights, including the constitutional right to an abortion.
— Elizabeth Warren (@ewarren) May 4, 2022