The Volokh Conspiracy

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What If The SCOTUS Leak Came From A Foreign Hack?

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I noted earlier that Justice Alito did not speak to the Fifth Circuit Judicial Conference. As a result, the conference organizers had to shuffle the schedule. We were treated to a presentation from an expert on cyber-security. She discussed at some length how the goal of foreign hacks is to sow discord in our polity. For example, cyber units would deliberately schedule protests for Black Lives Matter and Blue Lives Matter at the same time and in the same location. The goal was to foment division, and perhaps, create a violent confrontation. While watching this fascinating presentation, a thought jumped into my head: What if the Supreme Court leak came from a foreign hack?

Again, there is no strategic reason to leak the draft as a means to change votes. The Wall Street Journal already got the message out that the Chief Justice was trying to "turn" votes. (Josh Marshall at TPM credits my early speculation.) The leaked opinion did not augment the WSJ editorial. What would the conservatives gain from going beyond that leak, and giving the entire draft opinion to Politico?

And a liberal leak to shift votes makes no sense. A liberal leak, if anything, locks in the five members of the majority. The only theory that makes sense to me is that the leaker was trying to destroy the Supreme Court--the Flight 93 Leak, I suggested. It is possible a rogue liberal clerk decided to burn the Supreme Court down. On balance, I still cannot believe a Supreme Court clerk--no matter how woke--would try to destroy the Supreme Court. The Elect are an elite and selective club. They look out for each other. This leak has now transformed every clerk into a suspect. No one will trust each other. One First Street will soon resemble The Monsters Are Due On Maple Street. Self-immolation is not in the clerk handbook.

But there is another entity that may want to burn down the Supreme Court, and tear apart the American people: a foreign government. If that was the intent, the plan was successful. Look no further than the groups publishing the addresses of Supreme Court justices. Plus, as a benefit to foreign states, the torrent of news has taken Ukraine out of the headlines. Through this lens, the hack becomes much more plausible.

How would the hack occur? In the past, the Justices have suggested they use iPads and other devices. Is it entirely unreasonable to think that Justices, who are often working remotely, may have opened a draft opinion on the device? Sure. And we know from the DNC hack that clicking an errant link in an email is sufficient to install malware. Plus we also know that some of the Justices are not particularly tech-savvy. They can't even figure out the "mute" button during remote oral argument.

One piece of evidence provides some support for the hack theory. Josh Gerstein shared a byline with Alexander Ward. I had never heard of Ward before, and have never seen any of his reporting in the context of court. He is Politico's national security reporter. When I first noticed the byline, I wondered why Gerstein would share the byline with a national security reporter. From the outset of the story, I speculated that Ward may have received the leaked opinion. Tom Goldstein offered a similar thought: "I cannot think of a reason that Ward would have been on the story other than that the leaker communicated through him, not Gerstein." For these reasons, I was skeptical about the tweet threads suggesting various clerks may have leaked the document because of their past relationships with Gerstein. If Gerstein got the leak through his channels, Ward would not have shared a byline. But I do think that Gerstein may have received the information that there were still five votes for the majority. Also, another article notes that Gerstein interviewed Judge Owens about leaks "last week," so there was some gap in time.

If Ward did receive the document--in light of his expertise--it is reasonable to infer that it was transmitted through some very sophisticated electronic methods. Now, I am not suggesting that Ward received the document directly from some foreign state. I don't think any outlet would knowingly coordinate with a foreign state. Rather, it is possible that a foreign state hacked the document, transmitted it to some intermediary, and that document then made its way to Ward. For an analogy, the Steele Dossier comes to mind. Recall that there was a sustained effort to shop this document around to various outlets, but many journalists turned down the request because the document was largely unfounded. Unlike the Steele dossier, however, Politico fulfilled its obligation to make sure the document was authentic, which it was.

Again, I have no actual evidence to support this theory. At this point, every theory must be considered, and no theory can be ruled out.

If there is a possibility of a hack, then the Supreme Court Marshal cannot perform a thorough investigation. The Court lacks the technology to perform the requisite forensic analysis. Yet, the Court likely will not invite the FBI to investigate, as doing so would potentially breach the Separation of Powers. Moreover, if the FBI is invited, DOJ officials could be forced to testify before the Senate, and Senator Whitehouse. As a result, the Court will keep this investigation in house. And we all know what happens when insular institutions investigate themselves. I am not confident the Supreme Court is equipped to track down every lead.

Update: After writing this post, I came across an essay by Barbara McQuade, a former U.S. Attorney, on MSNBC:

Could the court's computer system or an employee's personal computer have been hacked, allowing an intruder to obtain a copy without any assistance at all from court personnel? Abortion is exactly the kind of hot-button issue that hostile foreign adversaries might use to stoke division within the United States.

McQuade and I will agree on very little, but we both stumbled onto the same possibility.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. I'm not saying it was aliens, but...

    1. LOL. I had the same thought.

      1. The finger prints of the Tooth Fairy!

      2. What if no one gives a shit who leaked the decision? What if the Supreme Court stops running a Star Chamber, and starts livestreaming every utterance, even that at the urinals?

        1. Sexist pig. Why shouldn't the female justices have their bathroom utterances livestreamed?

        2. What if you took your medication?

    2. But was it Martians or Venusians? This matters!

      Josh will be along shortly to discuss the possibilities.

      1. Clearly Martians. Men are from Mars, Women are from Venus. A Venutian would never do that.

  2. A hack is always a possibility ... and, after the OPM breach, I don't think anyone can confidently say that the US government can reliably protect sensitive information.

    At the same time, there is a significant potential risk from such an attack, in that if it is traced (even approximately) to a foreign source, it becomes a casus belli ... maybe not with guns and plains, but with the extremely considerable cybersecurity power that the US wields.

    1. sorry for the typoe: "plains" -> "planes"

      1. and typoe -> typo ... it never endss

        1. I like to spell it "typoe" singular and plural, in memory of Dan Quayle, because it is self-referential, and because it once in a while provokes someone to call it a typo.

    2. >after the OPM breach, I don't think anyone can confidently say that the US government can reliably protect sensitive information.I don't think anyone can confidently say that the US government didn't do it.

    3. "At the same time, there is a significant potential risk from such an attack, in that if it is traced (even approximately) to a foreign source, it becomes a casus belli ... maybe not with guns and plains, but with the extremely considerable cybersecurity power that the US wields."

      1: Given that the Obama Admin never used that power to go after the people who did the OPM hack, that threat seems minor, at best

      2: Given that the Biden* Admin has spent the week celebrating the leak, the threat seems even less

  3. Isnt there two separate secure networks for all government organizations , including the SC and all the circuit courts.

    If the clerk and/or justice is on the internal court secure network, they can transfer documents from that net work to the outside network.

    The system in effect cant be crossed over - unlike hrc's home server.

    1. OOPS - typo

      If the clerk and/or justice is on the internal court secure network, they CAN'T transfer documents from that net work to the outside network.

    2. POTUS's network was hacked by DNC operatives and no one was the wiser (*wink* *win*, we know the Democrats at the SS, CIA, NSA, DHS etc all knew what was going on...)

      1. This tool thinks the DHS is a Democrat tool. JFC. Next he'll say the Southern Baptist Convention (if they say anything anti-GOP and conservative outlets say it).

        1. Hi, Queenie. What is your preferred pronoun?

  4. What is it with the Cathedral trying to pretend that the only hackers in the world are all employed by foreign governments?

  5. Did Brett write this post?

    1. Brett would only posit a Democrat led conspiracy.

    2. You mean Kavanaugh? 'Cause this theory sounds pretty silly to me.

      I mean, sure, a foreign intelligence service might do such a hack, but why the hell would they hand it over to Ward? They'd just make it turn up anonymously.

      1. Hillary wrote Vince Foster’s suicide note!

        1. Do you have a reason a foreign intelligence service would leak to a foreign correspondent when trying to make a leak look domestically sourced? Your average conspiracy theory actually hangs together better than this.

          1. Yeah Brett, you’re a great judge of the plausibility of conspiracy theories. See above!

            1. He's experienced; he's concocted more than a few.

      2. So, if I follow, you believe that it would be plausible that (i) a left-wing clerk would seek to "destroy the legitimacy of the Court" by coordinating this leak, and (ii) similarly, a foreign government might similarly seek to destroy the Court's legitimacy by coordinating this leak. What you don't find plausible is the precise means by which a foreign government would choose to do so. You think they'd dump it on Wikileaks or something, rather than forwarding it to a national security reporter for Politico.

  6. There is another very plausible reason Gerstein would bring in an experienced national security reporter to the story: to examine the document and help determine it's authenticity.

    That certainly doesn't rule out a foreign hack, but that seems a more likely explanation to me.

    1. No, that's not plausible. You guys know that all that 'national security reporter' means is that he reports on foreign affairs, not that he's an ex MI-6 operative, right?

    2. This is where lack of familiarity with legitimate journalism causes people to express profoundly stupid opinions.

      Did you work for a junior high newspaper? For a day or two? How about a church bulletin? A Klan newsletter? Anything?

  7. "What would the conservatives gain from going beyond that leak, and giving the entire draft opinion to Politico?" The answer is in your next sentence: "A ... leak, if anything, locks in the five members of the majority."

    1. Josh's view of strategy does seem pretty narrow, since the only strategic goal he posits involves the Justices changing their votes. But, like you mention, maybe the goal is to solidify the votes as they stand and prevent defection.

      If the WSJ editorial was accurate, and Roberts was trying to turn one or more members of the presumed majority, then a "conservative" leak might be done in an effort to prevent defection. If a justice in the current (assumed) majority changes their vote post-leak, everyone will know who switched, potentially tarnishing their image/legacy

      By leaking the draft opinion and the makeup of the majority, the leaker may be trying to keep anyone in the majority from defecting.

      Or maybe a cat walked on the keyboard and emailed the draft opinion to Politico.

    2. " "What would the conservatives gain from going beyond that leak, and giving the entire draft opinion to Politico?" "

      Anyone who would write that is very dumb. It is difficult to believe any law professor -- well, any professor at a top 150 school, at least -- could produce a sentence that bad. Is the Volokh Conspiracy using ghost writers from a backwater junior high school's Pre-Federalist Society club?

  8. Interesting thread on the possible leaker

    https://twitter.com/willchamberlain/status/1521685968939630592

    Best guess yet:

    Will Chamberlain
    @willchamberlain
    Meet Elizabeth Deutsch. She’s currently a law clerk for Justice Breyer.

    And, in my humble opinion, she’s the most likely person to have leaked the draft Supreme Court opinion in Dobbs, purporting to overturn Roe v. Wade.

    1. It's only interesting in that it's a zealot who is needlessly attacking someone.

      So, we can all agree that if this person didn't do it, we can all attack WILL CHAMBERLAIN and make sure that WILL CHAMBERLAIN is linked to every possible outrage that comes up, right? Because that's the kind of jerk maneuver this is.

    2. This kind of wild-eyed speculation reminds me of the Salem witch trials.

      1. Alito's opinion celebrates the views of a guy who sentenced women to death for witchcraft.

        These clingers just don't change.

        But they will be replaced.

      2. It's not remotely that.

        The pool of people with access to the draft is limited. It's roughly 50 people. Of those, the nine Justices and the chambers of the Chief and Kavanaugh make zero sense. So at best, you're talking 30 people.

        Every one of those people is publicly known, because the identity of the clerks is known, plus maybe two people in the Reporter's office. If you have a limited pool like that, and you have a clear factual link between one of the 30 and the publisher of the leak, and the one happens to also be a demonstrably likely person to be inflamed by the opinion (based on prior public statements), it's not an unreasonable inference to suggest that this person is one of the more likely suspects.

        The individual in question is married to a WaPo reporter. It's a certainty that she and reporter are aware of the public suggestion. It would be trivial for them to deny it publicly. It would also be trivial for them to start deleting old photographs showing them with Gerstein. Which do you think they chose?

  9. Seriously, Professor Blackman, it's time to start thinking about getting a life. Try to get over the leak and go back to your encyclopedia so you can keep telling us uninteresting factoids about what happened today in Supreme Court history.

    1. Ascribing the This Day In Supreme Court History content to an encyclopedia brutally defames encyclopedias . . . and for what reason?

  10. We have yet to see how this plays out, but there is not question that the person who has gained the most to date from the leak, and the attendant flare-up in our nations' crazy culture wars, is Putin.

  11. The fact that the draft opinion leaked is meaningless, it is irrelvant, it has no impact on the nation or the Court other than give people something to talk about other than the opinion. The fact that a draft opinion leaked will be no more than a footnote in history, if that.

    Exactly how does knowing 2 months in advance what an opinion will be change anything? One of the villains here is the Court itself, a bunch of cowards who wait until the end of a term to release politically controversial opinions even though those decisions were made months in advance. The biggest consequences, the Justices will not be able to sneak out of town for a 3 month paid vacation.

    The leak is beneficial to the American republic. We get to see a glimpse of how the sausage is made, how our Court system works. We also get to see the raw, ugly, bitter words of Justice Alito, we see what he really thinks which would not be the case if/when his opinion is watered down to remove some of its vitriol.

    Even those who support overturning Roe and returning abortion rights determination to the states must be appalled at the rhetoric. And that is why they concentrate on the leak, and not the substance.

    1. "a bunch of cowards who wait until the end of a term to release politically controversial opinions even though those decisions were made months in advance."

      Probably the main reason the most controversial decisions take the longest is because the dissenting justices want to respond, and the majority wants to make sure they have adequately rebutted the dissent. And often there are 2-4 dissenting opinions issued and 2 or more concurrences as well.

      If you want faster decisions then perhaps putting a word limit on the dissents would be a solution, but a solution far worse than the perceived problem.

  12. ...we have a "foreign government" in the White House and the Congress.

  13. "Again, there is no strategic reason to leak the draft as a means to change votes. "

    You've got to think like a liberal Josh. This is a "life or death" situation. Here's the thinking.

    1. Expose the opinion, before its officially released.
    2. Release the home addresses of the selected Justices.
    3. Get/Pay "protestors" to "protest" outside the house of the Justice to get them to change their vote and/or provide cover for...
    4. Hope for / get a Hodgkinson-type to "create an opening" on the SCOTUS.
    5. Have Biden then nominate a new liberal justice to the SCOTUS to change the decision.

    Oh, I hear the whining from here. Liberals would "condemn" any such action. But here's my real challenge for the liberals. Let's say such a tragedy occurred. Would you REALLY not push for Biden to nominate a liberal justice? Really not take this good fortune that fell in your lap to make sure Roe wasn't overturned? I mean, that poor Justice is gone...he or she didn't REALLY vote on this decision. It wasn't finalized. So, the vote can change... And it's such an important decision.

    1. Of course you're right. Josh is too blinded by wokeness to see the obvious. It's not at all that you're a deranged tool.

    2. Isn’t this the plot of the pelican brief?

    3. What a jackass you are.

      Of course if a vacancy came up I, and I assume virtually all liberals, would want Biden to appoint a liberal justice.

      WTF is that supposed to prove? That we support the murder of a conservative justice to create the vacancy? (no doubt someone will soon be along with some cockamamie theory about Scalia.)

      No. It doesn't. The suggestion is insane, and if you happen to find some lunatic who does suggest this it means nothing.

      1. Because I state the truth...

        As a practical matter, there are two options Biden and the Democrats can pursue if one or more of the conservative SCOTUS justices is removed via violent means before the opinion is released.

        Option 1: Denounce the violent acts are reprehensible. Make it clear that such violent acts cannot be allowed to sway decisions before the SCOTUS. And make it clear that even if these violent acts are undertaken, the previous decision will stand, even if it's not finalized. Violence cannot be allowed to change decisions.

        Option 2: Denounce that violent acts are reprehensible. But admit, since the decision isn't finalized, and the SCOTUS judge isn't there anymore, well... Roe v Wade is more important. And appoint new SCOTUS justices which will uphold Roe v Wade. Violence is reprehensible, but in this case, it managed to reverse a decision.

        Which one do you support Bernard? Option 1 or Option 2? Sounds like Option 2.

        1. If one of the Justices dies before the decision is announced, the case has to be reheard and redecided. This is what was done after Robert Jackson died during the 1954 term.

          1. Stop messing up A.L.'s fantasy.

          2. Option 2 for Mr Crisis as well.

        2. What I support is denouncing the violent act and then appointing a liberal to the court.

          Your framing of the issue is ridiculous and tendentious, like 90+% of your comments.

          You are basically suggesting that because of this one case Biden is obligated to nominate yet another RW fanatic to the court. He isn't.

          1. I'm suggesting that a message could be sent that violence isn't allowed to change judicial decisions...

            You're suggesting it absolutely should.

            1. You're deep into writing fictional scenarios and demanding policies be made to deal with them now.

              That's a really dumb way to make policy. But it is a great way to decide the other side secretly supports your fictional scenarios.

        3. Option 1: Denounce the violent acts are reprehensible. Make it clear that such violent acts cannot be allowed to sway decisions before the SCOTUS. And make it clear that even if these violent acts are undertaken, the previous decision will stand, even if it's not finalized. Violence cannot be allowed to change decisions.

          Assuming the report that the court is split 5-4 is accurate, that would itself be illegal. As the Supreme Court itself has explained, a judge cannot join an opinion issued after their death:

          Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

          1. You're missing the point. Point is, are you going to allow violence to change the outcome of a SCOTUS decision?

            Sounds like you also approve of such a situation.
            As expected, the legal technicalities are being held to tightly.

            If the decision remained the same, even if violence was used to remove one of the SCOTUS justices before the decision was finalized, that would send a powerful message that violence was not an effective tool towards changing SCOTUS decisions.

            On the other hand, if the decision changed, that would send the opposite message. Violence was an effective tool if one wanted to change a SCOTUS decision.

            1. Quit buying trouble that doesn't yet exist in order to get angry no one has dealt with your political thriller nonsense.

              1. idk, it doesn't sound like nonsense to me. Highly unlikely, but not nonsense.

                It's an interesting question - if someone assassinates a supreme court justice who is known to be in a 5-4 majority of an unreleased opinion, that act of political terror potentially changes the decision. (If it becomes 4-4, the lower court ruling is upheld. If the political party controlling the White House disagrees with the ruling and nominates/confirms a judge who disagrees with the ruling, and it gets re-argued, it's now 5-4 the other way).

                It doesn't feel like condemning the violence is enough. No, Biden didn't order a hit. Most democrats would rightly condemn the violence. But they still benefit from it happening.

                So, if there was some issue sufficient to motivate someone with sufficiently radical political opinions and willingness to act, releasing an early hardline draft opinion could foreseeably provoke at least an attempt. (I mean, we've had people shoot up a congressional baseball game). Abortion might be such an issue. It only takes one person moved to violence to precipitate an incident. And it doesn't even need to be the intention of the person who released the draft opinion.

                I'd suggest the right response is for one of the minority to switch sides, at least in terms of the disposition of the current case. (Presumably Roberts here). This could lead to a dramatically different opinion, but at least the same party would prevail.

                The other possible response is to head off the immediate benefit for an assassin by releasing a brief per curiam now, with detailed opinion and concurrences/dissents to follow later.

                But refusing to even think about the consequences of political violence after an incendiary event? Sounds like burying one's head in the sand. It's not like lone wolf political violence is unheard of in the US. (At the same time, I agree with you that it's unlikely to be the reason for the leak, but the leaker's intention doesn't change the probability of various consequences. This is a relatively small, but not insignificant, probability outcome).

    4. Writing bad fiction is fine. Believing that fiction is certainly what is happening is one adrenochrome from QAnon territory.

    5. It is those who blather about how ¨pro-life¨ they are who have employed assassination tactically. If their situational morality were controlling (it´s of course not), the assassination of a jurist would be no more objectionable than the assassination of doctors.

      For those who bleat about James Hodgkinson, I am unaware of any nexus between him and abortion rights advocates.

  14. What If The SCOTUS Leak Came From A Political Hack?

    .....Like Josh Blackman

  15. " a thought jumped into my head "

    . . . or oozed from a sewer pipe into a clinger fever dream . . .

  16. "After writing this post, I came across an essay by Barbara McQuade"

    TMI

    1. Thanks a million. Some mental images can't be unseen.

      1. Given all the stuff Josh has told us about his personal habits . . .

    2. Haha! I need to work on moving my mind further into the gutter. I didn't get that at first.

  17. Blackman is toeing the conservative line...no mention of women or rape. Just the leak

    1. Hobie is toeing the leftist line, bring up bullshit hypotheticals while never even trying to counter any of the legal or factual arguments in the draft

      Because, of course, everything Alito wrote was correct, and all you leftists know it

      1. Because, of course, everything Alito wrote was correct, and all you leftists know it

        It might be quite reasonable to wonder if hobie (or other "leftist" critics of Alito's draft have even read more from it that the short quotes that have been in most of the articles in major news outlets. I think it quite reasonable to wonder how much of it you have read in order to conclude that "everything" that Alito wrote was "correct".

        1. I've read the entire draft other than the Appendix. And did so before I went out to comment on it at all.

          Because that's what you do when you have a functioning brain, and the document is only 60 pages.

          It's been out for a week now, and I've yet to see a single valid legal or historical argument against it. "I don't like it" isn't a valid legal or historical argument. "Blackstone said abortion was only illegal after quickening" isn't a valid argument when you don't address Altio's response to that "argument."

          I quote a chunk of it here: https://gregquark.blogspot.com/2022/05/alito-on-how-blackstone-and-hale-show.html

  18. What if this post came from a domestic hack?

    1. That was my first thought when I looked at the question of "why Ward with a byline?"

      Thinking NSA / other US "deep state", not freelance hackers.

      Which would explain why the Biden* Admin is so in favor of the leak: they did it

  19. The problem with the foreign hack hypothesis is the actions of the American Left.

    They're all ecstatic about the leak, and acting like they all believe someone on their side did it.

    I think we should believe them

    1. They're all ecstatic about the leak,

      This is a fact that isn't.

      1. Which Democrat US Senators or members of the House of Reps has spoken out against The Leak?

        Which MSM organizations have published editorials condemning The Leak?

        Who's the most prominent left wing member of the US press who's condemned The Leak?

        If our positions were reversed, I would have written "that's not true, X, Y, and Z all condemned The Leak."

        That you couldn't actually do that argues for the correctness of my claim.

        I suppose I could have played CYA, and said "the Institutional Left" instead of "the Left", because after all Glenn Greenwald did condemn it, and he is on the Left.

        But when you say "the Left" or "the American Left", Glenn Greenwald is not who you think of, other than as a counterpoint to all the other lefties

      2. I just checked: even ScotusBlog hasn't condemned the leak.

        They haven't even added an article condemning the leak in thier "what we're reading"

  20. Yet, the Court likely will not invite the FBI to investigate, as doing so would potentially breach the Separation of Powers.

    Ouch! If that's correct, the court's investigation will never succeed. Nor can the court use other branches of government to set up secure networks for them.

    In theory, I guess they could hire a private contractor to secure their stuff. But in the long run, a talented and motivated permanent security staff is needed to keep things secure. But private contractors can be questioned or subverted by other branches. It's not the same as employees of the judicial branch.

    I think SCOTUS should hire Edward Snowden as their chief security officer.

    1. Judging from history, the FBI would probably just immunize anyone who might provide useful testimony about what happened, plus their bosses, while issuing reports about what happened to servers that have been wiped (not like-with-a-cloth) and that the FBI never laid hands on. Months later a third party will discover new, relevant evidence that the FBI will claim to have already looked at.

      Edward Snowden broke rules in a spectacularly egregious way. He has no credentials that qualify him to implement or oversee a security system.

    2. CrowdStrike perhaps?

  21. Abortion is exactly the kind of hot-button issue that hostile foreign adversaries might use to stoke division within the United States.

    If a foreign adversary can "stoke division within the United States" by simply leaking something that was actually written by a Supreme Court Justice, then what does that say about how divided people already were over that issue? This wouldn't even be comparable to "disinformation" from Russian or Chinese or North Korean or Iranian troll farms. There is nothing false about it. CJ Roberts fairly quickly acknowledged that it was real.

    If conservatives have any complaints about it stoking division because it was leaked, what do they think will happen when the actual opinion comes out (or would have happened if the draft never leaked)? If the eventual opinion is basically the same line up of Justices, the final opinion is likely to just be a more polished version of that draft, perhaps with some of the arguments worked out more carefully with some of the criticisms we are seeing now addressed.

    This speculation about it being a hack in order to sow division that otherwise wouldn't have been there (or even just not as bad) doesn't work. This ruling was always going to be divisive. Any foreign actor that thought to increase division by leaking the draft would have been risking a diplomatic incident with no chance of a payoff.

    1. If I had to guess, the final decision would likely have involved more compromises on legal principles to maintain the 5-judge coalition and avoid fracturing the ruling too much. Discussion may also have changed some of the analysis, which might have changed specific legal conclusions. (I've seen plausible arguments that Alito is wrong about some of the history). Drafts in this case are discussion documents, not final products. We know there are 5 justices in favor of the state winning, not that there are 5 justices in favor of this exact reasoning.

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