The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Another day, another leak. Despite the ongoing investigation, information continues to spill out of the Supreme Court. The latest story comes from Politico. Now, Josh Gerstein and Alexander Ward share a byline with Ryan Lizza, who is the Chief Washington correspondent. And this story comes out the day before the scheduled May 12 conference, the first conference since the initial leak. (Though I think it likely that the Justices have met in some unscheduled fashion over the past week.)
The story makes six new claims.
First, we learn that no other draft dissents or concurrences have been circulated:
Justice Samuel Alito's sweeping and blunt draft majority opinion from February overturning Roe remains the court's only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes. No dissenting draft opinions have circulated from any justice, including the three liberals.
The fact that no other opinions are even in the mix explains why the Court could not quickly put out the decision to quell the current maelstrom. Whoever provided this leak has up-to-date information about the status of draft opinions. Of course, it is possible that Roberts privately circulated his concurrence to Kavanaugh and Barrett. Recall that in Casey, Kennedy, O'Connor, and Souter largely worked independently of others. Scalia was stunned when he learned that the votes flipped. I will return later in this post to (wildly) speculate why no other opinions have been circulated.
Second, Politico offers some speculation about its own exclusive--why someone would leak a February draft in May?
That could explain why no second draft of Alito's majority opinion has been distributed, as typically the two sides react to one another's written arguments and recast their own.
Many observers (present company included) presumed that the leaked draft was likely obsolete, as there were almost certainly other circulated opinions. But, according to Politico, there are no other drafts. Therefore, there would be nothing else to leak. Alito's opinion is still current.
Third, Politico quotes someone "close to the court's conservatives."
"This is the most serious assault on the court, perhaps from within, that the Supreme Court's ever experienced," said one person close to the court's conservatives, who spoke anonymously because of the sensitive nature of the court deliberations. "It's an understatement to say they are heavily, heavily burdened by this."
This person has connections to not just one conservative member, but several conservatives, plural. And this person is speaking on direct knowledge of how several of the Court's conservative members are reacting to this leak. And he is relaying that this leak is the "most serious assault on the Court" ever--more than the Civil War, more than Court Packing, more than the massive resistance to Brown, more than Bush v. Gore, more than Biden's ill-fated SCOTUS commission, and so on. Why? This enemy is not at the gates, but is "within." And we learn that the Justices are "heavily, heavily burdened." No kidding. You might call it an "undue burden." The justices are having their homes picketed, and things will likely get worse as we get closer to July.
Also, this sourcing is very similar to a source the Washington Post quoted:
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 wonder if the same person was authorized by the Justices--or even the Chief--to talk to the Post and Politico.
Fourth, Politico quotes someone else to discuss the sentiments of the liberal Justices:
A second person close to the court said that the liberal justices "are as shocked as anyone" by the revelation. "There are concerns for the integrity of the institution," this person said. "The views are uniform."
Now this person is simply "close to the court," but not close to conservatives or liberals. But this person is conveying personal sentiments from Justices Breyer, Sotomayor, and Kagan. They have "uniform" views with the conservatives. This leak should disabuse anyone that a Justice authorized this leak. And, presumably, none of these Justices know that their law clerks did it. It would be difficult for a Justice to share this concern for the Court's integrity, while knowingly harboring a clerk who caused that breach. Again, I do not think this leak came from a clerk, but someone else "within."
Fifth, Politico speculates that Roberts's vote is still in play:
In the Mississippi abortion case currently before the court, Dobbs v. Jackson Women's Health Organization, it's not clear if Roberts will join the liberal justices in dissent, craft his own solo opinion in the case or perhaps join a watered-down version of Alito's draft.
Roberts could still try to lobby one of the five Republican-appointed justices to withdraw their support from Alito and sign onto a more centrist opinion that doesn't formally overturn Roe, but instead upholds Mississippi's 15-week cut off for performing most abortions. Such a move would deprive Alito of a majority and could maintain some federal guarantee of abortion rights, although precisely what regulations states could impose on abortion under such a scenario remains murky.
I take it that Alito's opinion still has five votes because there is no other opinion to join. Justices Kavanaugh and Barrett could still be waiting to see what the Chief cooks up. Or they may have already seen a private draft, like in Casey.
Roberts has not broadly circulated his draft concurrence, which would find a way to uphold the Mississippi law without overruling Roe and Casey. The delay in releasing that concurrence could explain the absence of any dissents. Why circulate a dissent if the majority may not hold. Kagan can keep her powder dry for now. But what is Roberts waiting for? Dobbs was argued in December. We are now in the second week in May. How long could it take to whip up a Chief blue plate special? Sophistry is not hard.
My cynical take is that circulating the draft opinion at the latest possible juncture creates chaos, and makes it more likely that things can move around without sufficient deliberation. This strategy resembles that of the death penalty abolitionists, who deliberately file last-minute appeals, hoping the rush causes a temporary stay. Of course, the response to this strategem is the Purcell principle. We are far too close to the end of the term to justify such a sudden shift in the process. I am mostly being facetious, but the analogy holds.
Sixth, Politico traces much of the current dysfunction to Roberts's decision in NFIB.
While Roberts is a conservative and has sided with his Republican-appointed colleagues again and again in cases involving voting rights, campaign finance and affirmative action, he seemed at times more like a swing justice on other issues, particularly over the past decade.
However, in a series of politically-charged cases, Roberts sided with the court's liberals to uphold the Affordable Care Act's individual mandate, reject then-President Donald Trump's repeal of protections for so-called Dreamers, and foil Trump administration plans to add a question about citizenship to the 2020 census.
Of those rulings, the Obamacare one ruffled the most feathers because Roberts reportedly reversed his position days before the decision was announced, ultimately voting to find the law constitutional.
"There is a price to be paid for what he did. Everybody remembers it," said an attorney close to several conservative justices, who was granted anonymity due to the sensitive nature of the court's arguments.
To some extent, Roberts is also now a victim of the expectations he set for himself by publicly and repeatedly embracing the goal of building consensus on the court. Speaking at a legal conference in Atlanta last week following POLITICO's disclosure of the draft abortion opinion, he hinted at the perils of that approach and suggested he'd lowered his own horizons a bit.
"I learned on the court unanimous means 7-to-2," Roberts joked, according to the Washington Post.
I agree--and I swear, I am not the "attorney." I am not close to any Justice. They are wise to keep as far away from me as possible.
When Roberts came on the Court, he explicitly said that public perception would affect his approach to judging. A desire to have more unanimous decisions was an express appeal to build public confidence in the Court. But this decision had predictable consequences, as Roberts would eventually place a jurisprudence of public relations over a jurisprudence of law. Since NFIB, Roberts has been falling into the bottomless pit from which he cannot extract himself. And, alas, he is trying to take some of his new colleagues down with them. If they take the leap, this pressure does not vanish. It will simply increase in the next case. Home picketing will seem quaint.