The Volokh Conspiracy

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The Flight 93 Leak

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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:

NEXT: Politico Symposium on Broader Implications of the Leaked Supreme Court Opinion Overruling Roe v. Wade

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  1. Has the leak "backfired" for the Left though. Sure it is unlikely to change the outcome of the case. The justices are not going to flinch (probably) in the face of adversity here. To do so would be political suicide not only for the 5-6 justice majority and the schools of thought on which they have rested their professional careers, but for the court in general. Even the liberal justices know this. Wouldn't surprise me if maybe one of the three who dissent partial concur now or if there is some sort of decision signed on by all nine even if there is a dissent on the legal issues.

    The point might have been to attack the legitimacy of the court and that seems to be the play of the left. But, I would posit that the leaker is probably a "true believer" or "fellow traveler" who was more interested in firing up the activist community and start a partisan wave. If that was the intention, it seems to have worked. The various groups on the left are in full on panic mode.

    I, for one, don't mind the "legitimacy" of the court getting undermined. It has been a stake in the side of the Republic since the later half of the 20th century. It will take more than 5-6 conservative justices to change the direction of that and undo all the damage. The court probably does need to "die" in some fashion as do many other parts of our constitutional republic at this point. The faster that happens, the better, and the higher the likelihood that a hot civil war can still be avoided.

    1. "The court probably does need to 'die' in some fashion as do many other parts of our constitutional republic at this point. The faster that happens, the better, and the higher the likelihood that a hot civil war can still be avoided."

      These sentiments aren't working to make the world a better place, they are working to burn it down. They aren't bringing peace, they are welcoming trouble. They claim they are avoiding a "hot war", but in reality they have just the opposite effect.

      If you want to see what actual "insurrection" looks like, you will find it by pursuing this line of thinking. It's a real short step from "Let it burn" to "Burn it down".

      1. What isn't making the world a better place is the slow grind of leftism and its immoral, unethical, anti-religious dogma has subjected humanity to over the last 70 years. The wheels need to come of this bus sooner rather than later.

        1. Aa opposed to..... Immoral, unethical, pro-religious dogma?

          1. Contradiction in terms. The entire basis of pro-religious dogma is morality.

            1. That silly assertion indicates you are as gullible and ignorant as you are bigoted, I Callahan.

          2. Is that what actually characterized the history of the republic prior to the "last 70 years"?

      2. Frankly, I and many, many others have been in the "Burn it all down" camp for a long time now. It's why I supported Trump in 16 and 20, and why I'll support whomever I view as being the greatest wrecking ball in 24.

        To build something new, you have to destroy the old first. The current power structure as it exists is irredeemably broken.

        1. That was the thinking behind the French Revolution, and it resulted in the reign of terror. Fires tend to get out of hand fairly quickly, and there's no guarantee your side will be the one left standing.

          1. I understand it's an extremely risky proposition; to borrow from a post further down its a Hail Mary Pass at the very least. I cannot however, simply sit back and accept those that say "Well that's what we've always done and it's too dangerous to deviate".

            I reject the permanent premise that it's all about either the Right or Left messing up an otherwise good system. That sounds suspiciously like the "Real Communism hasn't ever been really tried" crowd, in other words "If I or my prefered people were in charge the system would work." when it reality it's isn't about the policies, it the system and institutions themself that are fundamentally broken.

            Jefferson himself alluded to the fact he thought revolution would be necessary about once a generation. I tend to think we are long overdue. No system can last forever when the real hands on the levers of power are a permanent entrenched career bureaucracy who never leave or change no matter who is in charge.

            We have a government unworthy of the Constitution they are changed to protect.

            1. If you've been reading my comments here for any length of time you know I think the current system stinks, though we probably disagree on which problems it has -- I would start by abolishing the electoral college and two senators per state so that we have elections that actually reflect the will of the voters.

              That said, the problem still remains that there are plenty of people on the left who also want to burn it down, although their reasons are different from yours. And once the burning starts, there are no guarantees as to the outcome. Sure, you could get the libertarian utopia some here wish for. You could also end up with Hitler or Mussolini. At this point I'm far from convinced things are so bad as to justify striking the match.

              1. My money is on the side with the most firearms, ammo, firearm's expertise, and military experience - and who also understand that life isn't always "fair" and that mommy, daddy, or the government won't always protect them and taking risks is often necessary to achieve success.

                That doesn't bode well for the success of leftist snowflakes of the Millennial and Gen Z generations in such a revolution. If one needs a "safe space" because they see a MAGA cap in their school, I doubt that they will do well on the battlefield.

              2. we probably disagree on which problems it has -- I would start by abolishing the electoral college and two senators per state so that we have elections that actually reflect the will of the voters

                This is a diagnosis of insufficent democracy. My diagnosis is insufficient liberty, and your proposals seem likely worsen the disease that I am concerned about.

                So, since you seem to be heading into constitutional amendment territory - indeed beyond that since one of your proposals aims to get rid of the one unamendable bit of the Constiution - I will counter with some of my own Constitutional amendments :

                1. All government employees are dismissable "at will", without compensation, by the President, notwithstanding any State or federal law, or contractual agreement, and none may receive a pension for past service.
                2. The Senate of the United States shall be composed of two Senators from each state, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote. No Senator may serve for more than 30 years. The 17th Amendment is repealed.
                3. Congress may make no law infringing the liberty of any citizen without the consent of at least one Senator from two thirds of the States.
                4. No federal judge may be appointed without the consent of at least one Senator from two thirds of the States, unless the vacancy has remained unfilled for five years. The number of Justices of the Supreme Court shall not exceed nine, and no new judicial office may be created without the consent of at least one Senator from two thirds of the States. No person may serve as a Justice of the Supreme Court for more than thirty years.
                5. No new State may be admitted without the consent of three fourths of the members of the Senate
                6. Neither Congress by legislation, nor any court, may amend or replace the Congressional Districts set by the Legislature of each State on any account other than to rectify either (a) that the set Districts do not contain equal, or as nearly as is reasonably possible, numbers of adult citizens and/or (b) that, compliant with the equality requirement of (a), it is shown that it is possible to draw Districts the aggregate length of the boundaries of which is shorter than those drawn by the Legislature of the State. Only the Governor, or a member of the Legislature of the State in question shall have standing as a plaintiff.
                7. No international treaty shall have any legal effect in the United States, unless it contains a provision permitting withdrawal from the treaty without penalty, with a notice period not exceeding two years.

                In return for all of these, I am willing to grant you an amendment to Electoral College - you get an Electoral Vote for each Member of Congress, but nothing for a Senator 🙂

        2. Frankly, this sounds deranged to me.

          What exactly is your complaint?

        3. "To build something new, you have to destroy the old first. The current power structure as it exists is irredeemably broken."

          Precisely what you criticize the left for having done, no?

  2. When the modern Left loses control of an institution, it will seek to destroy it. It possesses a collective "If I can't have you, no one can!" mentality.

    1. Except one: if you don't try, death is certain.

      There's an old Trek episode where the shuttle Galileo is trapped on a planet of giants strong enough to pound it to bits. Yet they don't have enough fuel to reach a proper orbit. The Enterprise is gone, off to some other emergency.

      They have a few minutes left, and can land safely and then die, or die burning up when their fuel runs out.

      Spock lets out the remaining fuel as a flare, and they soon are starting to burn up. But it worked, of course.

      "When logic has no solution, the only logical thing to do is be illogical."

      Shhhh...let's not apply logic to anything in that episode.

      1. A fun episode, though the Star Trek props were more cardboardy than usual. Though the 'flare' as shown by a bright ring growing round the planet was excellent.

        However, the characterisation of Spock's action as illogical, by Kirk, McCoy and the scriptwriter is of course the opposite of the truth. it was the only logical option available.

        1. "[T]he characteri[z]ation of Spock's action as illogical, by Kirk, McCoy, and the scriptwriter is of course the opposite of the truth. it was the only logical option available."

          Isn't that somehow comforting? Sometimes the best, most logical course of action seems imprudent: taking that seemingly imprudent course requires an uncommon degree of courage and self-assuredness.

      2. One of the better episodes of one of the greatest shows ever made.

    2. In Argentina, since the advent of Peronism, whenever Peronists aren't in charge, they intentionally seek to destabilize the country.
      I think the collective mentality you're describing can be fairly characterized as "fascist."

      1. Fascist, communist, the differences are stylistic: The closer you get to complete power over the people, the more the actions converge, because the role of despot demands it. Nazi Germany and Stalin's USSR were barely distinguishable except for the wording of the propaganda.

        1. "except for the wording of the propaganda"

          And the mean temperature of their prisons/gulags.

  3. As probably the only NeverBush Republican it feels so good to be vindicated every day I wake up even over a decade after the train wreck of the Bush presidency. Had Bush appointed Miers Roe/Casey would still be the law of the land. I thought the Texas power disaster and the Texas Rangers building a new ballpark and Afghanistan would be the last chance to say “I told you so!”! But here it is in 2022 and, I told you so!!!!!!!

  4. "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."

    I mean, I suppose that sounded good, but it still makes no sense. It's a zero sum game; It may have the potential to backfire against both sides, but it can only actually backfire against one.

    1. I suppose that sounded good, but it still makes no sense.

      Correct.

      Plus, trying to figure out who did it based on some deep strategic plan is nonsense.

      Here's the thing:

      One person, or maybe two, did this. That's all. And they did it for some reason that appealed to them, and not necessarily to other on their side of the political fence.

      To try to parse this as something "the left" or "the right" planned and did is ridiculous.

  5. "Rather, the goal may have been to destroy the Supreme Court as we know it in order to (hopefully) save the nation."

    I rather think that the goal may have been to destroy the Supreme Court as we know it in order to destroy the rule of law.

    The rule of law threatens the Left, not the Right. The Left wants to dictate the rules, not work under them. Their mottos are, "We are the law, not your f**ng courts!" "Let it burn!" etc.

    As the adults in the room, it is up to us to ensure that the ones who are primarily hurt by this leak are the leaker(s) themselves.

    1. I am always amazed at the capacity of the more extreme elements of both sides to be so utterly oblivious to their own deeds and so hypersensitive about the other side's.

      1. Can you name an example of the right using such means? I’m drawing a blank.

        1. Pretty much every single accusation of election fraud and voter suppression.

          No wonder you drew a blank

          Plenty of cancel examples as well.

        2. January 6, 2021.

          1. Yeah, that unarmed insurrection/ photo op. Cavanaugh hearings, anyone?

      2. Progressives, from the time of Wilson have decried the structure of government set up under the Constitution. Conservatives have not.

        That pro-Roe people are now screaming about the tyranny of the Court is just too precious.

  6. It was one of Sotomayors prog clerks, done to destroy the legitimacy of the court. Hopefully we get to impeach her during Trump 2.0 presidency. bwhahahahaha.

  7. A less excitable metaphor is the Hail Mary pass. It has a low probability of success, but when you're behind, time is running out, you have no time outs and you're still a long way from the end zone, it may be the best option you have left. It occasionally works.

    If twas a fervently pro-choice clerk, then she was losing, as the clock ticked away. Maybe she saw little sign of the "group of five" cracking. So why not throw the ball in the air as far as you can throw it, and see what happens. It may be the best option.

    Compared with an apparently more machiavellian scheme to juice Democratic turnout in November, the Hail Mary makes more sense. Leaving SCOTUS to bomb public opinion without warning, with a shocking Roe reversal, closer to the election, would be far more vote-juicy than a shock that had already been trailed in advance. So to affect the elections, you don't throw the ball. Whereas if you want to change the result of the actual case, you have to throw the ball before the decision comes out.

    Similarly, if twas a fervently pro-life clerk, it only makes sense if that clerk thought she was losing, ie one of the five has already been peeled off, and a Hail Mary is required. (Throwing the Hail Mary when you're just worried that one of the five might get peeled off would be silly. Like throwing a Hail Mary when there's still 2 minutes on the clock and you're only on second down.)

    Since we're talking Hail Marys here, ie things that have a low probability of success, we can do the Bayesian thing with this. The likeliest route to arrive at a Roe victory, from the moment immediately before the leak, is that anti-Roe was already losing at that point. If the eventual decision upholds Roe, that suggests a pro life leaker as marginally more probable.

    Conversely if Roe is reversed, that implies that Roe, having been behind in February, was probably still losing immediately pre-leak, and so a pro choice clerk is the likelier leaker.

    We have precedent for GOP Justices running away from the sound of the guns, in the face of public opinion, or at least liberal media opinion. But no precedent for them running towards the sound of the guns - the very idea is comical.

    So we can further deduce that the probability of a pro-life leaker in the case of Roe being upheld is somewhat less than the corresponding probabilty of a pro-choice leaker in the case of Roe being reversed. Since to arrive at Roe being upheld when Roe is losing pre-leak (ie when it makes sense for a pro choice clerk to throw the Hail Mary) requires a GOP Justice running away from the guns. Whereas in the latter case, if Roe loses, when it was winning immediately pre-leak, we require a GOP Justice to run towards the sound of gunfire. (Sorry if I made you snort your coffee onto your desk.)

    1. I think that's the most likely possibility. Well explained.

    2. I admire your use of Bayesian reasoning - would that more people deploy it more frequently!

      But of course it still requires an assessment of possible rationales. You have to include a document accidentally left on a desk, spotted by a non-clerk who wanted to see it out there, or a clerk who wanted to show off how big they were to a prospective partner, one of the five justices reasoning that the outrage was due anyway, but an early like would -not have the same impact as the later actual decisions - and given that some justices were willing to lie under oath about Roe, we can no longer assume good faith, etc etc.

      1. and given that some justices were willing to lie under oath about Roe

        Objection! Alleges facts not in evidence.

        There's no evidence anyone other than Alito supports overturning Roe. This was a first draft from February and is not represent the current court opinion.

        Oh, and I thought people's opinions could evolve over time? Or are you saying that your opinions are the same now as 20 years ago?

        1. "Objection! Alleges facts not in evidence."

          Overruled. This isn't a court. Alito might have changed his mind over decades, but Kavanaugh, Gorsuch and Barrett in two or three years? GMAFB. I doubt you believe it either.

          1. Um, what statement do you think Kavanaugh, Gorsuch, or Barrett made under oath that was false?

        2. BillyG
          May.5.2022 at 9:37 am
          Flag Comment Mute User
          "there is no evidence anyone other than Alito supports overturning Roe. This was a first draft from February and is not represent the current court opinion."

          In reality - there is ample evidendence that at least 5 support overruling Roe v Wade. Alito would not have been assigned the majority opinion unless there were 5. If there were only 4 (or less than 4) , then alito would be writing the dissent.

      2. I have to wonder why a clerk would leak the draft since it will ruin their legal career (except perhaps as legal expert for CNN , NPR, etc)

        The starting salary for a former SC clerk is 400-500k with typically a 100k signing bonus with many earning $1m after only 8-10 years

        1. You can make more money as a talking head (plus, the inevitable book deal and the Netflix movie). Plus, Big Law is a pretty miserable life.

          1. People who become clerks want that life, at least for a while before becoming a professor or judge.

            Nobody is going to hire this leaker for a full time high paying media job either. Not trustworthy and nobody cares about them.

            1. There are more than 45 people who see draft opinions. It is not just Justices and Clerks. People leave shit laying around all the time. Could be janitorial staff, for all we know.

              1. Seems unlikely a janitor has connections at Politico, though.

            2. "Nobody is going to hire this leaker for a full time high paying media job either. Not trustworthy and nobody cares about them."

              Isn't that exactly the qualification for several media outlets?

          2. A successful talking head may make more money than that. Leaking a draft decision gives one 15 minutes of fame, not a career (let alone a successful one) as a talking head.

    3. There is a third option besides black and white conservative/liberal: a clerk who favors the hypothetical Roberts opinion — the Mississippi law is valid under Casey and therefore the court need not address the continuing viability (perhaps not the best word choice!) of Casey/Roe — leaked it to persuade a wavering justice to either come over to Roberts' side or to stay on Roberts' side.

      I express no opinion on the likelihood of this option.

      1. continuing viability (perhaps not the best word choice!)

        Why? Sounds like a very appropriate choice. In a tongue in cheek sort of way.

  8. The problem with any theory that the liberal justices (or their clerks) want to destroy the "legitimacy" of the Supreme Court is that leaking an early draft, ahead of the actual decision, doesn't meaningfully serve that purpose. It's also not strategically useful, when you (in the minority) rely on institutional considerations like comity and consensus-building in order to have any influence on the Court's decision-making, going forward. Leaking would, for these justices, certainly "backfire."

    Josh hasn't explained how leaking would "backfire" on the conservatives, but I think that's because he intuitively has a sense of what's really going on here, but doesn't want to admit it: Alito lost his majority. Alito wrote a harsh, extremist opinion, and it helped Roberts peel off one or both of Barrett and Kavanaugh, who may each be hostile towards abortion rights but also are receptive to Roberts' institutionalism.

    This theory explains the evidence we have so far. It explains why we've seen only a first draft of Alito's opinion, from February, and not a more recent and definitive draft. It lines up with the WSJ's forewarning about exactly that happening. And it's consistent with Roberts' statement on the leak, so far.

    I think it also helps to explain the media circus, so far. Josh wrote an early post warning against trying to "pressure" justices to flip their votes, while then proceeding to do a full court press to do just that. Meanwhile the mainstream media and Democratic establishment are doing their utmost to pump up the hysteria, perhaps understanding that the actual decision will walk back the extremist position that Alito staked out, depriving them of a later fundraising and GOTV opportunity.

    Roberts is an institutionalist, and the liberal wing relies on a strong institutionalism to have any influence over the Court. But Alito has never been an institutionalist. Alito is a spiteful, vindictive activist, and I absolutely believe that he's behind the leaks to the WSJ and Politico, as part of a strategy to either pull back a majority vote in favor of his opinion or to ensure that the flip-floppers get the full Roberts-after-upholding-the-ACA treatment.

    Remember that Roberts does not need five votes in favor of his preferred outcome on this case. He needs five votes for the outcome, and five votes for re-affirming Roe. I am at this point expecting a badly fractured opinion that splits the baby, King Solomon-style, with perhaps something like a 2-3-4 or 3-3-3 split. Five or six for the judgment of the Court, upholding the law, with Roberts writing "an opinion" explaining why Roe should not be overruled, but also explaining how the Mississippi law can be considered to be consistent with Casey's "undue burden" standard. Under this opinion, fifteen-week abortion bans may be permissible, but six-week abortion bans likely wouldn't be.

    1. Alito has no connection to Politico while one of Breyer's clerks is married to a former co-worker of the Poltico author.

      I'll give you a different interpretation. Given this is a 3 month old first draft, it doesn't reflect the current ruling. Alito wrote it as a first draft, a justice or two said they would uphold the law but not overturn Roe. The current (unreleased) ruling reflects this. Some liberal clerk saw a way to generate outrage and leaked an out of date copy to try to sway the court to overturning the 15 week ban or generate support in November for Democrats.

      This also fits comfortably with the facts for why a first draft was released instead of the current draft. A current copy would support your reasoning more than the first draft. A final copy upholding Dobs and not overturning Roe would generate less outrage & turnout for Democrats than a draft overturning Roe.

      1. Alito has no connection to Politico while one of Breyer's clerks is married to a former co-worker of the Poltico author.

        So, Breyer has no connection to Politico, either.

        The problem with your theory is that it supposes that Breyer's clerk would have no problem throwing the other justices under the bus, in service of a narrow political goal (that is likely to dissipate between now and the election). I don't see any reason why Breyer or his clerks would be interested in burning down the bridges on their way out.

        A current draft upholding the law and re-affirming Roe would not achieve the result that I am supposing Alito might want to achieve, which is specifically to identify and call out the justice(s) that flip. If the first insight we had included Barrett or Kavanaugh as part of such a controlling opinion, conservatives might be upset, but they wouldn't be as upset as they would be knowing that the initial votes had gone another way.

        1. So, Breyer has no connection to Politico, either.

          I agree, which is why I said the clerk.

          The problem with your theory is that it supposes that Breyer's clerk would have no problem throwing the other justices under the bus, in service of a narrow political goal (that is likely to dissipate between now and the election). I don't see any reason why Breyer or his clerks would be interested in burning down the bridges on their way out.

          Someone decided to throw justices under the bus in service of a political goal. Those who are on their way out have the least to lose. This particular clerk has written extensively on abortion and is staunchly pro-aborition.

          To reframe what you said:

          A current draft upholding the law and re-affirming Roe would not achieve the result that I am supposing the leaker might want to achieve, which is specifically to identify and call out justice to flip & upset liberal voters. If the first insight we had included Roe being upheld as part of such a controlling opinion, liberals might be upset, but they wouldn't be as upset as they would be knowing that the initial opinion had gone another way.

          The issue here is we don't know what the opinion was on Monday. You're supposing the leaker is trying to change justices opinion back to overturning Roe. My supposition is its trying to influence justices to change opinion to upholding Roe.

    2. "Josh wrote an early post warning against trying to "pressure" justices to flip their votes, while then proceeding to do a full court press to do just that."

      ^^^

  9. With all these lawyers on VC, where are the posts analyzing the correctness of the leaked Alito decision for correctness? Was Roe so aggregious?

    All I see from both right and left are articles about the impact.

    1. The Alito opinion traverses well-covered ground. The only parts I found mildly surprising were (a) some of his commentary about the due process clause generally [in his attempt to attack Casey], and (b) the depth of the historical appendix of abortion laws [which I assume he cribbed from someone else].

      Roe/Casey has been the subject of so much scholarly work over the years that there isn't really anything grand to be said that hasn't been said five times already. I happen to be a supporter of the Casey substantive-liberty-interest argument, but like every lawyer of my generation, I recognize and acknowledge the flaws in the original Roe opinion. I suspect most lawyers who have studied the issue have settled into their view, and are not surprised by Alito's opinion, nor inclined to try to "persuade" others.

      1. Right. The vulnerabilities of Roe to attack from a particular meta-legal perspective, which views the reasoning in Roe as invalid, are well-understood. What's changed since Roe is the underlying jurisprudential philosophy about how our law should be developed from sparse textual original sources, among conservative judges, and I don't think we see anything in Alito's opinion that justifies adopting that new philosophy, either generally or specifically for this case. Just an essentially false assertion that the relevant standards have always applied.

    2. Yes Roe was bad, mostly because of how much it relies on Griswold - which is just a train wreck. The only thing every justice in Griswold agreed on was just how stupid the CT law in question was; after that, all bets were off.

      1. I wonder if Earl Warren ever regretted assigning Griswold to a lazy hack like Bill Douglas.

  10. I'm still offended that the ignorant and hateful people who voted for Trump were compared to the heroes who stopped Flight 93.

    1. 63 million Americans -- "ignorant and hateful."
      The only difference between people like you and Al-Qaeda is that Al-Qaeda hates all Americans, while you only hate half of them.

      1. To be fair, captcrisis should have said "ignorant and/or hateful."

  11. People are putting way too much imagination into the motives of an unknown party.

    1. Come now, it's fun; more fun than complaining about the latest government outrage.

    2. Worse, I think, is Blackman's continuing assumption that the leaker acted on the basis of a rational plan. "Venting anger" seems like the most probable explanation, at least to me. A liberal clerk (or Court employee, but I lean towards clerk) learns of the planned Alito opinion, and the anger builds, day after day, until the clerk simply cannot stand it -- and reaches out to Politico as an emotional need, not an analytical plan.

      1. There may not have been a plan, but there still had to be a motive.

        1. "Waaaaaaa!" is a motive, just not a very coherent one.

  12. If this stream of content from Prof. Blackman -- and the comments it generates from the followers a white, male, right-wing blog cultivates these days -- is how Prof. Volokh chooses to squander whatever credibility the Volokh Conspiracy has left among the American mainstream, he is entitled to follow this course.

    His playground, his rules.

    He has tenure. He can get lucrative work in the clingerverse whenever he chooses. He doesn't like the established trajectory or consequences of American progress. He seems to struggle with trying to understand how most people perceive things. He not only doesn't mind being the contrarian but indeed might enjoy it.

    Perhaps this course was the most likely course, or maybe it was inevitable.

    Carry on, Conspiracy.

    1. Ah the arc of history, gloriously pointing to the pot of gold at the end of the rainbow. The endless march of progress that never actually results in a better world.

      A strange gospel to be preaching, but that is what humans do.

      1. America has improved greatly during my lifetime, juris imprudent. Where have you been?

        1. Some things get better, other things get worse. Taking progress as a matter of faith does not automatically make for a better world. You might try reading some of Christopher Lasch's work.

  13. "Rather, the goal may have been to destroy the Supreme Court as we know it in order to (hopefully) save the nation."

    Ennobling the destruction of the integrity of the Court's processes ill suits Blackman.

    Narcissistic rage, whether individual or collective, is an ugly thing.: "Do what I want or I will destroy all that you have."

    That brings us to today. The perpetrator ought to be taken to task (to put it mildly) and afforded no glory.

    I suspect that the Court is aware of who orchestrated the leak and is holding the information closely (i.e., relying on the Marshall) to manage the outcome. I also suspect that all of the clerks will move on at the end of their clerkships without fanfare, but one (or more) clerks will not be recommended for future positions.

    1. I took the statement about destroying the SC to save the nation as the perspective of the leaker. No radical works to bring down the system to replace it with something worse, even if that is the result.

  14. Publius Decius Mus, by the way, is a complete idiot.

    1. Why are we still calling him that when we know it was Michael Anton?

  15. Newsflash: people often do something expecting one result, and get a totally different one. History is full of such examples. Ask Vladimir Putin is he is happy with the result of his incursion into the Ukraine.

  16. I suggest that the leak was made in order to distract the public from a bigger news story this week.

    One such story is the Pfizer vaccine case. On Monday they delivered another 80,000 pages in discovery. The blog coffeeandcovid.com is about the only site discussing them.

    1. The 2000 Mules release date is more plausible than Pfizer-gate, imho.

      1. You guys forgot about the Reverse Vampires.

    2. Virus-flouting, conservative dumbasses are among my favorite culture war casualties.

      And a core of the Republican Party.

      And the target audience of a white, male, right-wing blog that abuses the franchises of a couple of legitimate law schools.

      1. Gosh, Argue, it seems like Roe v. Wade itself is about to be a "culture war casualty".

        Surely even a leftwing extremist like you should be able to see that.

        1. Artie, not Argue. Damn autocorrect.

  17. To extend your analogy in a particularly sinister way, a leaker might hope that some extremist will assassinate one of the five before the opinion is made final (coupled, perhaps, with an already-confirmed Justice-in-waiting).

    A slightly less sinister scenario might be to give the D's time to pack the Court before the opinion goes final.

    1. Protests in front of the Justices' homes. Some black bloc type could see this as an exciting way to change history. A couple fire bombs through a window then run back into the crowd. Possibly eliminate a justice and their hellspawn family. Better yet, Biden gets to nominate the successor who would be quickly confirmed.
      This would be one way for the culture war to become a shooting war. Things can get much, much worse. I hope level heads prevail. And I really hope that the leaker was a low level non-attorney staffer.

  18. “…the goal may have been to destroy the Supreme Court as we know it in order to (hopefully) save the nation.”

    What is the alternative?

    Packing the court merely politicizes the court even more than it is perceived to be now.

    Amending the Constitution to alter the judiciary in a significant way would be nearly impossible.

    Tossing the entire Constitution and starting from scratch may sounds attractive but I think the reality of such an endeavor would start to sink in as soon as people give it serious consideration.

    A breakup of the Union itself seems implausible but again, the implications are beyond what advocates might imagine.

    Congressional action to limit the jurisdiction of the judiciary? That sounds like a plan to eliminate judicial review.

    What is the alternative?

    1. Maybe not throwing a temper tantrum when you don't get your way, could you lefties try that for once?

      1. If from what I wrote, you assume I am some sort of “leftie” perhaps I have not asked my question properly or you misread it.

        The alternative I ask about is the alternative to the status quo as the quote I cited seems to indicate. It calls for “destroy[ing] the Supreme Court. If it is to be destroyed, what is the alternative. I give a couple of alternative ideas that seem either impossible to implement or not realistic. So what alternative is supposed to be achieved by destroying the court?

  19. We don't know who did this. We don't know why whoever did this did this. At this point, nobody other than the leaker(s) has any better information than anyone else about who did this and why. Nobody has any better basis than anyone else for whatever pet theories they may have.
    Eventually, we may find out. Or we may not. Hot takes based on nothing don't advance the ball.

    1. I mean .... it lets us understand the people who make the hot takes better. So ... yeah.

      It's getting kind of ridiculous at this point. We don't know if it was done by someone trying to "lock in" conservative votes, or "rally" liberals. We don't know if it was a justice or a clerk or even someone at the Supreme Court.

      For all we know, it could be someone who happened upon a copy that someone made the mistake of bringing with them on their lunchbreak to read ... and that Starbucks barista chose to publicize it.

      Obviously, some possibilities are more likely than others. But once we're in the "I want to destroy the Supreme Court territory," the unhinged person isn't the leaker, it's the person pumping out more stupid content.

  20. I've been wondering about the draft opinion leaked to the press.

    Could it be that Justice Alito wrote the opinion in advance of a case in order to marshal his thoughts on potential grounds for reversal so that when the opportunity presented itself he were be prepared to offer those thoughts to his colleagues? It seems much the same to me as a newspaper having on hand draft obituaries of prominent people which can be recalled, updated and release when the inevitable happens. Of course such an opinion would need to be updated as things develop and edited to match the specific case under consideration but the general outline could easily be seen from the history.

    I've long has a theory that disgruntled bureaucrats keep reports ready for the possibility that some specific situation will develop then pull it out of the bottom drawer of their desk to prove how brilliant they are. I seen no reason a jurist couldn't write an opinion on a prospective issue of importance, certainly legal commentators have written probably millions of works about Roe in the past.

    This leads me to wonder whether the Leaked Draft Opinion reflects what Justice Alito hopes to happen or whether it represents the final vote of the court or even if in light of the leak the final opinion will be significantly altered.

    {This is the second version of this post I have written. A longer one was eaten by my computer when it decided to reboot in the middle of editing on Reason.com}

    1. It seems much the same to me as a newspaper having on hand draft obituaries of prominent people which can be recalled, updated and release when the inevitable happens.

      https://www.youtube.com/watch?v=1tX6jdoruH8

  21. What's changed since the writing of the now-leaked Draft?

    We have heard "I’m not a biologist," a sentence which "affirmed her support for the Constitution and the limits it places on the judiciary, vowed not to abuse her role and go outside of those limitations, and steered clear of a number of policies associated with the Left, such as critical race theory." "She said a Supreme Court decision overturning Roe v. Wade would be 'worthy of respect' because it would become the new precedent."

    I agree that "The degree to which she answered questions by adopting textualist or originalist thought processes is a testament to how conservative jurisprudential approaches now frame most constitutional law discussions. Even liberals are now arguing within parameters set by jurists such as Justice Clarence Thomas and the late Justice Antonin Scalia." [quoting https://www.washingtonexaminer.com/opinion/judge-jackson-actually-sounds-conservative-thats-important , which also
    cites Randy Barnett's tweet "saying the right things at a confirmation hearing is still important. It’s a signal of what is ‘the norm.’ Talk like this drives nonoriginalists crazy ... Also, her ‘affect’ is wonderful, too — which goes to judicial temperament."]

    The present leak has the potential to undermine the _incoming_ Justice, potentially for the duration of her lifetime appointment. The leak also has the potential to undermine Senators Murkowski and Collins, who have relied upon the sworn statements of judicial nominees. In general, the leak hurts the left, with the only potential gain to the left being slightly increased turnout in the mid-term elections and, given the Ohio primary results, the increased turnout is unlikely to make a difference.

  22. I don't see a motivation for someone on the anti abortion anywhere anytime side to leak. The Supreme Court has upheld Roe for a long while, this time wouldn't be any different than the last couple times. Also, the leak would open up any of the justices who might have supported overturning, to death threats and physical assault. It would make them less likely to support overturning not more.

  23. Justice Alito took pains to distance and distinguish the right to abort from the other Fourteenth Amendment "privacy" rights similarly birthed in Griswold's imaginary penumbras and emanations on the fact that something was being killed in an abortion, while ignoring the 1,400 lb. analytical gorilla in the room that wonders whether sodomy and same-sex marriage are “deeply rooted in our nation's history and tradition” and whether those things are essential to our nation's “scheme of ordered liberty.”

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