The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Jeff Rosen and Joan Biskupic Talk About Supreme Court Leaks
RBG told Rosen that AMK wrote the Bush v. Gore PC, and Biskupic said a Justice likely leaked Dobbs wrangling to WSJ.
Joan Biskupic was a guest on Jeff Rosen's podcast for the National Constitution Center. I transcribed it for everyone who could not commit an entire hour of their time. A few things to highlight.
First, Rosen said that after Bush v. Gore was decided, Justice Ginsburg called him, and said that Justice Kennedy wrote the per curiam opinion (4:37). Rosen was not troubled about this leak at all. The identity of a PC opinion should remain anonymous, and the Court should not disclose confidential information. But RBG proactively volunteered this information.
If I may flash back a moment to the Obamacare litigation. Some conservatives alleged that Rosen may have had a leak of information, and was using that information to influence Chief Justice Roberts. Rosen assured me in an interview for Unprecedented that he did not have any inside information about the case. At least following Bush v. Gore, Rosen got a private phone call from a Justice to divulge personal information. Moreover, Biskupic didn't even note this fact was out-of-the-ordinary. I cannot repeat enough that after Ginsburg's passing, Biskupic's inside information seems to have dried up.
Second, Biskupic said that the Wall Street Journal "has been the beneficiary of personal leaks from various justices" (34:19). She added that the Journal has taken advantage of that "access" in writing their editorials. She added, that "there is a very close connection between certain justices on the court, and the Wall Street Journal editorial page and through some intermediaries too." Biskupic referenced the WSJ editorial which claimed that the Chief was trying to flip Justice Kavanaugh in Dobbs. I was the first person to make this claim publicly. Biskupic also took that editorial "very seriously" because she knew "about the Journal's pipeline to the Court." On further questioning from Rosen, Biskupic said "Oh yes," a Justice leaked to the WSJ about Roberts's efforts (37:06). But Biskupic stressed that she did not think a Justice did not leak the actual opinion to the Journal (38:20). Indeed, she stated that she did not think it was a Justice's spouse (I wonder which one?) or a clerk.
Third, Biskupic revealed that she knew the Dobbs vote at conference (35:20). Specifically, "I had known what the vote had been." She added that Alito had five votes at conference, which I don't think she has publicly stated. Biskupic then explained that before the WSJ editorial, "I wasn't going to report on any of this because my usual M.O. is to reconstruct a case after we know what happened, because I know how much can change in June, at the very end." (I long suspect that Biskupic received information during the term, on the condition that she not disclose that information till the opinion was rendered.) But after the WSJ editorial, Biskupic considered writing about the Chief's efforts to pick off Kavanaugh or Barrett. Ultimately, she did not write on the issue, and the Politico story came out. Biskupic added, based on her "own reporting," that the "Chief continued to try to broker some deal at the middle." But the leak made the "Chief's efforts all but impossible."
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
(Readers may recall that Josh has also rather credulously presented Alito’s own statements that he knows who leaked the opinion, and it wasn’t a conservative. One might wonder, then, what Josh’s theory of the case must be, given that he apparently believes that a justice telegraphed the Court’s inner workings to the WSJ ed board, while taking at face value Alito’s assertion that no conservative leaked the draft itself.)
(If the reader wonders that, then the reader may be unfamiliar with Josh’s incessant need to place himself at the center of every story, even at the risk of distracting incoherence. A logically consistent account of the truth is not a central concern of his.)
Roberts is not a conservative…
Roberts is a conservative both ideologically and temperamentally. Dr. Ed is an idiot.
Ladies and gentlemen…..Josh Blackman!
” the Chief’s efforts to pick off Kavanaugh or Barrett. “
WOW….
Did HE leak it? While I was always suspecting that it was the “Wise Latina”, Roberts having leaked it would explain a lot of things starting with why the leaker could not be publicly identified.
I can see how he might think that mobs of protesters outside their homes might bully Kavanaugh or Barrett into changing a vote, he clearly didn’t understand what Friedrich Nietzsche meant by “that which does not kill me merely makes me stronger.”
I’m not saying these are the most conservative justices, only that they are the ones the least likely to be intimidated — they’ve been through hell and know what it is like and hence aren’t afraid.
FTA: Jeff, your question is so timely because was just one year ago to to May 2, that that leak happened. And I that very day, earlier in the day that leak came out at 832. This is so much that seared in my memory. That leak came out that night. And earlier in the day because of something the Wall Street Journal had written like five days earlier in its own editorial page. Wall Street Journal, I should say has been the beneficiary of personal leaks from various justices. And they have taken advantage of that in writing their editorials and They wrote an editorial suggesting that the chief might be making progress with someone like Brett Kavanaugh to prevent reversal of Roe.
To me that sounds a lot like one of the more Conservative Justices (my money is on Alito since there’s credible allegations of him leaking previously), or someone allied with them, was the source of the leak.
Look at all the rage Robert’s endured for flipping to uphold the ACA. It would be clear that leaking the draft would make it even harder for someone to switch votes.
Coupled with the somewhat routine leaks to the WSJ I think the smart money is on one of the Conservatives leaking it (and Alito, if he isn’t the leaker himself, wants to cover for them).
The more we learn about Ginsburg’s shenanigans, the more of a joke the current Justices’ “scandals” look. Her continuing to hear cases involving Trump after her comments that showed a clear bias against him both personally and in an institutional role is, by itself, far worse than the “sins” of having rich friends, selling land, having working spouses, or signing book deals, which all seem to have everyone in a sudden tissy. And that’s not to mention everything else we’ve learned about her naked partisanship and deviating from established norms.
But she was the “Notorious RBG,” so it’s all okay, I guess.
And, yes, this is whataboutism. But it’s whataboutism that shows the rank hypocrisy of those targeting the (sometimes) conservative Justices, while not giving a fig about the liberals.
Isn’t this really just about completely delegitimizing the Supreme Court as such, without regard to how America’s federal government will function afterwards? Like children setting their own house on fire?
What are you going to do to stop them?
Debunking the kritarchs’ bogus pretensions isn’t setting any house of MINE on fire. =I= certainly don’;t need an overinflated SCOTUS.
Your kritarchs spent decades, if not centuries, making up rights and constitutional parameters ex nihilo. Say goodbye to all your so-called ‘substantive due process’ rights. Say goodbye to your national injunctions. A ‘dormant’ Commerce clause? ‘Necessary and proper’ doesn’t actually mean necessary at all? Who else in the world do you think believes that garbage?
To be fair, maybe this will help to overturn Marbury, and, without the kritarchs’ chicanery, perhaps you can get back to the antebellum constitution.
Delegitimizing the Court is exactly what it’s about. In 2016, they nominated the only clown that could lose to a dipshit like Trump. That ultimately led to overturning Roe. And now they’re throwing a temper tantrum despite the fact that overturning Roe is actually helping them at the polls, which in turn will allow them to not only pass abortion-rights laws through the democratic process, but also a bunch of other non-abortion stuff too. I’d laugh if it weren’t, as you indicated, so dangerous to the rule of law.
CAN Congress pass Federal abortion rights laws that are Constitutional? Under what enumerated power?
But the Constitution could be used to ban abortion via the “nor shall any State deprive any person of life” clause of the 14th Amd.
If I may flash back a moment to the Obamacare litigation. Some conservatives alleged that Rosen may have had a leak of information, and was using that information to influence Chief Justice Roberts’s.
Has Josh or Randy ever denied being a recipient of such leaks?
Blackman has indeed prefaced various speculative articles with denials of possessing any inside knowledge.
Nothing recently has caused me to rethink my opinion that the highest probability event was Thomas bringing home a draft and conveniently leaving it on his desk for Ginni to find.
“But Biskupic stressed that she did not think a Justice did not leak the actual opinion to the Journal (38:20)….”
Wut? This double negative seems to mean that Biskupic did think a justice leaked the opinion to the journal. If so, why not just write it that way vs the confusing double negative.
Whoever leaked it is someone who didn’t want Kavanaugh or Barrett “picked off.”
The leaker rhymes with Shmalito.