The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the Washington Post published a thorough report about the leaked draft opinion in Dobbs. About halfway through the piece, we learn that the Post received several leaks from the Supreme Court.
The leaked draft of Alito's opinion is dated February 10 and is almost surely obsolete now, as justices have had time to offer critiques, dissents and revisions. But as of last week, the five-member majority to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter.
A person close to the court's most conservative members said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now. But the other conservatives were more interested in an opinion that overturned the precedents, the person said.
I have ten general observations.
First, the Post received confirmation from "three conservatives close to the court." This sourcing is significant. The Politico story was very opaque about how many sources it relied on. A general journalistic rule of thumb is to have two separate anonymous sources in order to provide confirmation. (People are more inclined to lie when their name is not attached to a story.) But here, the Post stresses there were three sources, which makes the reporting more reliable.
Second, the Post stresses that the sources are "conservative." The Politico story did not indicate the ideology of the source, leading to a never-ending debate about whether a liberal or conservative leaked the opinion. Here, conservatives are talking to the Post to stress that the majority "remains intact." This fact reaffirms that there was no reason for conservatives to leak the opinion last week. Again, if the majority was intact, or at least in flux, leaking the opinion would invariably backfire on the right.
Third, what does it mean to be "close to the court"? I mean, I'm close to the Court. I think and write about it all the time. Presumably, this phrase must mean "close to a Justice" or "close to a clerk who is talking to the press." (In my tenth point, I will revisit the fact that there are still leaks after the commencement of the so-called "investigation.")
Fourth, the Post cites three sources who maintain that the five-member majority remains intact, and also cites one "person close to the court's most conservative members." Woah! Not just a person close to the Court in some abstract sense, but a person close to the "most conservative" Justices. Presumably that would mean Justices Thomas, Alito, and Gorsuch. Here the Post makes clear that Breyer, Sotomayor, and Kagan are not the source of this leak. And ditto for Roberts, Kavanaugh, and Barrett. Who is this one important person in touch with the right-tail of the 3-3-3 Court? (It is not me.) More importantly, this person has intimate details about what transpired at conference. (Though frankly, I could have guessed at this conference discussion based on oral argument.) I do not know if the three people who are "close to the Court" include the one person close to the conservative members. The Post's sourcing is not entirely clear.
Fifth, the option Roberts floated at conference--upholding the Mississippi law without overruling Roe--would have been incoherent. Sherif Girgis has proven this point beyond cavil--there is no middle ground. And I am grateful that--at least at conference--the other members of the Court were unwilling to sign onto another blue plate Chief special. This issue is far too important to write yet another incoherent precedent that would confound the courts for generations to come.
Sixth, the Politico story published last week stated that the five-member majority was intact. Now, a week later, the Post states that the five-member majority is still intact. If we assume this information is reliable, then the leak did not affect the votes in the majority. Again, this fact reaffirms that the leak was not designed to shift votes. Instead, I still think the leak was designed to destroy the Court.
Seventh, the Post story suggests that Alito's draft opinion "is almost surely obsolete" which means "it is obsolete." And the majority opinion has now responded at some length to the dissents, and the Chief's partial dissent. Once again, given that there are so many more recent versions of the document, it is unclear why someone on the inside would leak an "obsolete" version of the opinion. I still think the person who leaked it was not a clerk or Justice, but instead obtained it through some improper means at some point in the past.
Eighth, the article was authored by Robert Barnes, Carol Leonnig, and Ann Marimow. Each of these reporters regularly write about the Court. It is unsurprising they would share the byline. There is no national security reporter, who may have been helpful to handling an expropriated document. This story is consistent with good old fashioned shoe leather reporting.
Ninth, let's take a step back. Even after Chief Justice Roberts excoriated the leak as an egregious breach of trust, people in his building--including the conservative Justices--are still blabbing. Apparently, only leaked opinions are investigated, but talking to the press is tacitly accepted. Such has been the practice for years. Roberts took no action in response to incessant leaks to CNN. These leaks need to stop. But the Chief Justice, once again, has proven himself to be utterly unable to manage this situation. As Roberts purports to clamp down on leaks, his precious institution remains a sieve. These leaks undermine the seriousness of the Marshal's investigation.
Tenth, I would put the odds at 50% that Roberts resigns after the last day of the term, and his successor is confirmed before the new term begins. What better way to virtue signal and promote bipartisanship then to vote to uphold Roe v. Wade, and let a Democratic president replace him with a 50-50 Senate. John Roberts, meet Cincinnatus. Will we get an actual Chief Justice Kagan?