The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Whodunit?
And why that is, at this point, an important question - maybe the only important question - emerging from the recent Dobbs leak
[Updated/corrected 5/7/2022]
Here's what we know about Leakgate: Justice Alito's draft "Opinion of the Court" in the Dobbs case, as published by Politico, is genuine. It was the first draft to be circulated; it is labelled "1st Draft," and it is the Court's custom to circulate drafts of majority opinions before other drafts—dissents, concurrences—are circulated. The Alito draft was dated February 10, 2022 (and, one may assume, it was distributed to the other Justices on that day), which is about two months after the Court heard oral argument in the case. If it were adopted by a majority of the Court and issued in this form, it would overrule Roe and Casey.
From those facts, we now know, inferentially, some things that we didn't know before the leak. First, that the Court has decided the case in Mississippi's favor. We know that because that's how "opinions of the Court" get assigned to individual Justices: the Justices vote on the preferred outcome in the case (Mississippi wins/Dobbs wins), and the senior Justice voting with the majority then assigns the task of writing the "opinion of the Court" in support of that judgment to one of the Justices in the majority (including, possibly him/herself). So the draft opinion's preferred outcome—Mississippi wins—must be the preferred outcome of the Court majority.
Now, if some Court insider had told me all of this a week ago, I would not have been terribly surprised. Bombshell news this is not. That the Court would decide the case in Mississippi's favor? Widely anticipated. That the first draft of a majority opinion, written by Justice Alito, would declare that both Roe and Casey are overruled? Also not unexpected; a number of the Justices (including Justice Alito) have consistently expressed that view any number of times in prior cases.
What is a little surprising is that Justice Alito is writing for the majority. He must have been given the assignment either by Chief Justice Roberts or by Justice Thomas. There are five Justices—Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett—who are junior to Alito; because we can surely rule out the possibility that the first two are in the majority in the Dobbs case, Alito cannot have been the senior Justice in the majority here, and therefore he could not have assigned a majority opinion to himself. So someone else assigned the opinion to him. There are only three Justices who are senior to Alito (Roberts, Thomas, and Breyer). The probability that Justice Breyer was in the majority here is infinitesimally small. That leaves Roberts and Thomas.
That's worth pondering for a moment. Given the extraordinarily high profile of this case, one might have expected that, had either Chief Justice Roberts or Justice Thomas been in the majority, that they would jump at the chance to assign the opinion to themselves. The fact that Justice Alito is writing for the Court means that either (a) Justice Roberts is in the majority and chose—surprisingly—to assign the opinion to Justice Alito, or (b) Justice Roberts is—again, surprisingly—not in the majority, and Justice Thomas did the assigning.
Either way, a somewhat curious state of affairs—though I would not call it earth-shaking, and it hardly justifies the frenzy of attention that has characterized the past few days.
To my eyes, then, there's not much information of any real significance that we obtained from the leaked document. The bombshell here isn't what's in the draft—it's in the fact of the leak itself. That's the bombshell, the one newsworthy event. While there have—on very rare occasions—been leaks of confidential Court information, public disclosure of a complete opinion draft is, to my knowledge, unprecedented.
It was, as Chief Justice Roberts described it in his press statement, "a singular and egregious breach," and an "affront to the Court." It is especially disturbing because of the way it interferes with the way the Court, as a collective, deliberates and decides what it is going to do.
Prior to February 10, 2022, the nine Justices comprising "the Court" exchanged their views about the Dobbs case only once: at the Friday Conference immediately following oral argument in the case. At the Friday Conference the nine Justices take up all of the cases heard that week, and the focus is on each Justice's position on one question for each case: Who wins? Petitioner or Respondent? What is the "judgment of the Court" to be?
There is not a great deal of time, at the Friday Conference, for much discussion of the why questions—the rationales and reasoning behind each Justice's preferred outcome. With nine Justices, nine distinct points of view held by nine voluble and articulate individuals, and anywhere from four up to a dozen cases to get through at each Conference, and lunch waiting at noon … you do the math. The Justices don't argue their positions at Conference—the chaos that would ensue if they did so is almost unimaginable—they simply state them, tote up the votes, and move on.
The "why" questions—and the deliberation and discussion and argument and negotiation and compromise over those questions—are all addressed in writing, after the Conference, based on circulated drafts (and memos commenting on those drafts, suggestions for revisions, responses to those suggestions, etc. etc.). A great deal can, and often does, happen during that process, which can be protracted and intense; coalitions form and re-form, majorities appear and dissolve, opinions are narrowed or broadened, etc. There are any number of examples (including, notably, the Casey opinion) where the Court's final disposition of a case changed substantially as it moved through that process.
The first draft of the majority opinion is just the initial step in that process, the opening salvo in a complex negotiation that has many possible outcomes. There has been an unfortunate tendency to overlook that in much of the commentary surrounding the leak. To take one notable example, the Politico story that kicked this all off is headlined: "Supreme Court has voted to overturn abortion rights, draft opinion shows." Misleading, at best. The draft opinion does not show that the Court has voted to overturn abortion rights, it shows that one Justice in the majority is proposing that it do so. That's a very different, and considerably less newsworthy, piece of information.
The fact of the leak does, to be sure, raise many very important questions: Who did it? What did they hope to accomplish? More importantly, what effect (if any) will it have on the Court's disposition of the case? What effect will it have on the public debate (and the midterm elections)?
Speculation about the answers to any of these questions at this point is entirely premature—though great fun, the sort of parlor game that many of us enjoy. We may get answers to the first two in relatively short order; as Josh Blackmun pointed out a few days ago here on the VC, there's a fairly small universe of people who had access to the leaked draft—the Justices, the Justices' law clerks, various members of the Court's administrative staff, and possibly some outsiders involved in the typesetting or printing of the draft—and there is at least a reasonable possibility that the investigation ordered up by Chief Justice Roberts will uncover the perpetrator without inordinate difficulty.
The absence of any reliable information whatsoever about the answers to these questions has not deterred Senate Majority Leader Mitch McConnell from concluding, however, that the leak was part of the campaign by "the radical left" to "destroy judicial independence." As he said on Tuesday morning on the Senate floor:
"For years, the radical left has attacked the institution of the Supreme Court. Last night it appears their campaign hit a new low…. [The leak] was almost certainly intended to stir up an inappropriate pressure campaign to sway an outcome…. by igniting a political firestorm to cause the Court to reconsider. Liberals want to rip the blindfold off of Lady Justice. They want to override impartiality with intimidation. They want to elevate mob rule over the rule of law. The same political movement that used a leak to move up the timeline of Justice Breyer's retirement process is trying to use yet another leak to make the Court less secure and less impartial…. Whoever committed this lawless act knew exactly what it could bring about…. One of the court's most essential and sacred features was smashed, just to buy the outrage-industrial complex a few extra days to scream nonsense about what the Court might rule.
Hmm. It's not clear how Senator McConnell knows all of this; perhaps the investigators from the Supreme Court Marshal's office should interview him to find out if indeed he has any non-public information about the source of, or the motivation for, the leak.
But we can all join Sen. McConnell to play the speculation game. Here's my candidate for "most plausible scenario consistent with the known facts," which I offer solely for the purpose of being able to say "See! I told you so!" when we find out what actually happened.
I think it most likely that the leak came not from the "radical left," but from the right, from the chambers of one of the Justices in the majority. The timing points in this direction; if the point was to "ignite a political firestorm" and to "buy the outrage-industrial complex a few extra days to scream nonsense about what the Court might rule," why wait until May 2d to activate the leak? That doesn't make a lot of sense to me. I suspect something happened between February 10 and May 2 to cause the leaker to think that an advantage could be gained by leaking Justice Alito's first draft (which, for all we know, may well have been superseded by others in the intervening weeks) at this late date. What might that something have been?
I'm guessing that someone—most likely Justice Roberts—from the majority is attempting to craft a compromise that would see Mississippi prevail without overruling the Roe-Casey line of precedent; if he can persuade one other Justice from the majority to join him, their opinion would be the "controlling" opinion for the Court in what would then be a 4-2-3 split. [This is precisely what happened in Casey].
So I'm thinking that the leak was indeed designed to put pressure on the Court, but pressure from the right—to make it more embarrassing and more difficult for any of the other Justices in the majority to peel off from the majority and join Roberts' opinion.
I have, like Sen. McConnell, absolutely no real basis for my speculation; but it's a good game, and you should feel free to put your own speculation in the Comments. Hopefully we'll find out the truth soon enough.