The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here we are, one month after Dobbs. The leaker has not yet come forward. Indeed, we have no clue who the leaker may be. David Lat suggests that the Politico reporters may not even know who the leaker is! I was patiently waiting for something, anything, from Supreme Court reporters that would shed light on this issue. And, this morning, Joan Biskupic of CNN published a piece titled "The inside story of how John Roberts failed to save abortion rights."
A preliminary note on sourcing. Biskupic relies on "multiple sources familiar with negotiations told CNN." This sourcing is similar to her 2020 reporting, which relied on "multiple sources familiar with the inner workings of the court." I find it remarkable that anyone with inside information would talk to Biskupic after the massive leak investigation. I think it is safe to presume that Biskupic's sources are people who are not subject to the leak investigation. Perhaps the Justices made some comments to friends, who then relayed the information to Biskupic.
There are three primary strands of Biskupic's reporting. First, Chief Justice Roberts tried to persuade Justice Kavanaugh to join his middle position, and save Roe. Second, the leak made it harder for the Chief Justice to operate. Third, after the leak, Roberts's efforts were unsuccessful. Nothing here is particularly earth-shattering.
The biggest reveal does not concern the leak itself. Rather, Biskupic reports on Justice Kavanaugh's vote at conference:
Kavanaugh had indicated during December oral arguments that he wanted to overturn Roe and CNN learned that he voted that way in a private justices' conference session soon afterward. But the 2018 appointee of former President Donald Trump who had been confirmed by the Senate only after expressing respect for Roe has wavered in the past and been open to Roberts' persuasion.
When did Biskupic learn this fact? Did she learn it at some point after the conference? After the leak? Sometime after the term concluded? The use of the phrase "CNN learned" does not reveal the timing.
Later in the piece, Biskupic elaborates on the pre-leak state of play:
While no other justice revealed interest in that Roberts' option at oral arguments or in the weeks that followed, sources told CNN that there was still an air of possibility behind the scenes, based on Roberts' past pattern and the knowledge that justices have previously switched votes at the 11th hour.
Roberts, sources told CNN, might have some opening, even if slim.
This phrasing strongly suggests that Biskupic received the information while the "opening" still existed. That is, in March, Roberts "might have some opening." This word choice implies that Biskupic's sources revealed the information to her after oral arguments, but before the Politico story.
It would not be surprising if Biskupic learned this information early on. After all, leaks were floating around the swamp. Remember, the Wall Street Journal reported that Roberts was trying to "turn" votes. I speculated that the Journal had a leak. And Biskupic states, without any equivocation, that the WSJ "previously obtained inside information about conservative votes."
If Biskupic knew about the conference vote at the time, why would she not report it? In July 2020, Biskupic published many conference votes. Perhaps she is comfortable releasing information about private conferences after the term is concluded, and all the cases are resolved. Maybe reporting on the conference vote for a still-pending case crosses some journalistic threshold? But had the conference vote been published, Roberts would have had less room to negotiate. Indeed, Biskupic reports that the Politico story constrained Roberts's ability to strike a compromise. She writes:
To the extent that liberals had hoped that the original vote by conservatives would change, that hope faded. Meanwhile, CNN has learned, Politico's disclosure accelerated the urgency of the conservative side to try to issue the opinion before any other possible disruptions.
Indeed, after the leak, the "conservatives" wanted to release the opinion quicker:
Multiple sources told CNN that Roberts' overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority.
Biskupic seems to support a conservative leak theory--that is, a conservative leaked the opinion to lock in the votes. The fact that no liberal has yet come forward, and claimed the plaudits, as David Lat suggests, casts doubt on the liberal-leaker theory. Still, I think that the purpose of the leak was to destroy the Court, and not to shift votes.