The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chief Justice Roberts called the leak of the draft Dobbs opinion a "singular and egregious breach of that trust" and a "betray[al] of confidences." But over the past decade, Roberts has been silent in the face of other leaks. Why is the Politico story so "egregious." Indeed, the reaction to the Politico leak has been almost uniformly negative, even as other leaks generated a collective yawn. Why is this leak different from all other leaks?
I offer a taxonomy to measure Supreme Court leaks, with three primary variables: (1) timing, (2) details, (3) impact.
First, the timing of a leak matters. On one end of the spectrum, Joan Biskupic had a very successful streak of publishing leaks after the OT 2019 term completed. Way back in 1973, there was also a leak in Roe v. Wade, in which an issue of Time magazine dropped a few hours before the opinion came out. (The notion of people actually buying a magazine from newsstands seems so unfamiliar by today's standards.) On the other end of the spectrum, there were leaks while NFIB and Bostock were pending. Of course, those media outlets didn't say outright that they had a leak. Rather, they engaged in well-informed speculation about what was going on in the Court. Wink, wink, nod, nod. The Politico story was so unique because it was published two months before the term concluded, and expressly acknowledged there was a leak.
Second, not all leaks have the same amount of detail. For example, during the run-up to NFIB, rumors swirled that the Chief Justice was getting wobbly. But the specific nuances of his saving construction were not well known. And notwithstanding the leaks, the spending clause aspect of the opinion still took everyone by surprise. Likewise, the Wall Street Journal's initial post about Roberts trying to "turn" votes in Dobbs lacked much specificity. By contrast, after the OT 2019 term, Joan Biskupic published a series of really, really detailed discussions of what happened at conference, and how Justices shifted and shaped their votes. Here, Biskupic had some really detailed insights from conference, which only the Justices can attend. (Has Joan published a single bit of inside information since Justice Ginsburg died?)
Third, various leaks serve different purposes. Leaks published after the term concludes are retrospective. They are designed to set the record straight; to make friends look good; to make adversaries look bad. And so on. Retrospective leaks are primarily of interest to Supreme Court nerds like you and me. Their impact is minimal. Indeed, when I expressed outrage about Joan's post-Term leaks, most people thought I was overreacting. Other leaks are extremely impactful. Generally, leaks made prior to the end of the term, when votes are still in flux, are intended to move those votes. NFIB, Bostock, and the WSJ Dobbs leak fit into that mold. For reasons I have explained at length, I do not think the Politico Dobbs leak was designed to shift votes. Rather, the intent of leaking the entire opinion was to destroy the Court. And so far, the leak has been successful.
In light of this taxonomy, the Politico Dobbs leak hits the trifecta. It was announced well before the term concluded. It provided the actual draft opinion, rather than speculation about where the case is headed. And it immediately blew up, and created a firestorm in the media. No wonder the Chief Justice thought this act was such a betrayal. Still, other leaks caused harm to the Court. Indeed, I think the failure to adequately recognize, and address these spate of leaks helped pave the way for what Politico did. The leaks in NFIB, Bostock, and other OT 2019 cases went unpunished. It is utterly surprising then that the leaks were amplified by orders of magnitude for Dobbs. I realize I sound like a broken record, but the Chief's failure of leadership to at least acknowledge Biskupic's leaks two years ago helped bring us to this present moment.
I hope there are no future Supreme Court leaks, but this taxonomy may be helpful to characterize them.