The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Dobbs Was Never In Doubt
And the leak likely did not "lock in" anything.
If I read the New York Times scoop about Dobbs correctly, there was never any internal uncertainty about what the Justices would do in the case. There were always enough votes to hear the case, and Alito's draft majority opinion picked up five votes at a record pace. A majority had signed on to Alito's draft several months before the leak.
Of course, readers will disagree on whether this is a good thing or a bad thing. To some, it will show how unwavering the majority was in their commitment to the right path. To others, it will show how zealous they were in their blind commitment to such a mistaken ruling. But however you come out on that, I think the timing should probably alter some of the assumptions sometimes made in discussions about Dobbs and the Dobbs leak.
Here's my thinking. The article presents the story from the perspective of those who tried to prevent the Dobbs majority. Since-retired Justice Breyer seems like a likely source, given the discussion of what was in his head at various times. And that creates a dramatic narrative of (Breyer's) uncertainty that matches what I think most people had expected was happening internally. On that expected narrative, the leak happened while the Justices were negotiating over the opinion, before five had signed on.
But apparently that wasn't the case. There was a majority around mid-February, without anyone requesting a single word of changes. The leak happened months later, on May 8.
Here's the most remarkable passage:
On Feb. 10 last year, Justice Samuel A. Alito Jr.['s] . . . clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women's Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.
But this time, despite the document's length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration.
Given that timing, the theory that the leak was designed to "lock in" the majority, or that it had that effect, seems implausible to me. The five in the majority had all joined almost immediately, months earlier, with not a single suggestion of changing a single word in the 98-page draft.
True, it's possible that a Justice might join an opinion one day and then "unjoin" it later before it is published. But that's rare. And this was understood as likely the most important case of the Justices' careers, with an opinion they had rushed to sign on to. And months had already passed. By the time of the leak, Alito's opinion would have been seen as basically done.
My experience as a clerk is from 20 years ago, with mostly different Justices. But in that bygone era, at least, a Justice hoping to prevent a five-vote majority would go to the likely 5th vote Justice and ask them to hold off until concurrences and dissents are circulated. The idea was that, as long as the circulating draft didn't have a majority yet, there was a chance that it wouldn't get one. A different opinion, circulated later, might persuade them. That potential 5th vote would signal openness to coming out differently by waiting for other opinions first.
What's striking about the inside story here, it seems to me, is that this didn't happen. No one waited. The Alito draft got to five at a pace faster than a 9-0 ERISA opinion.
I assume this partially explains why, after the leak, the majority did not change the draft very much. I've seen a lot of speculation that they did that because of public pressure. They couldn't change it because they would look bad, the argument runs. They would be seen as weak, so they had to join even thought they probably didn't want to. But in light of what we know now, the more likely explanation is that the leaked Dobbs draft already had five votes "as is," and it had those votes for months.
As I said up top, different people will see this as good or bad. But it seems like the most important lesson from the Times story.
