The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Trump Leaks Are Far Worse Than The Dobbs Leak.
Knives are out for Chief Justice Roberts, and poor Justice Alito.
A short while ago, I published a lengthy post detailing the New York Times's latest reporting on the three Trump cases: Trump v. Anderson, Fischer v. United States, and Trump v. United States. Here, I will offer several big-picture observations.
First, this leak is far worse than the Dobbs leak. In Dobbs, one or more people exfiltrated a draft opinion from inside the Court, and somehow that opinion made its way to Politico. (Maybe Jodi Kantor can tell us how that happened!) It was devastating for the draft decision to become public, and it nearly led to the assassination of Justice Kavanaugh. But the aftermath of the leak was swift and overwhelming: the Court was placed on lockdown, and a sweeping investigation was launched to find the culprit(s). But the Trump leaks are systematic and thorough. We have insights of confidential memoranda, detailed conversations at conferences, KBJ's changed vote, Justice Alito losing the Fischer majority, and information about many Roberts clerks were working on the case. This tapestry would require insights from so many different people. Moreover, all of this comes after the Dobbs leak when Chief Justice Roberts (apparently) put strict limitations on access to Court information. What did all of those measures accomplish? Apparently not much.
Second, and I alluded to this point in my earlier post, Justice Kagan is absent from this reporting. There is absolutely nothing about what she thought or did during these deliberations. There are insights into all of the other eight Justices, but nothing on Kagan. This isn't new. Back in the day when Biskupic got the scoops, Kagan was also largely absent. I think it likely that Kagan, or at least Kagan surrogates, are behind these leaks. If Kagan is willing to publicly undermine her colleagues in a speech at the Ninth Circuit, why would she do any less off-the-record? Moreover, this entire story is consistent with Kagan's MO, and describing the Court as bending over backwards for Trump. On that point, I would be willing to place a bet that the three Trump appointees rule against Trump in any election case that comes to the high court. Like in the tax return cases, Justices Gorsuch, Kavanaugh, and Barrett will gladly knock Trump off the scene and declare their independence. Would you take the opposite bet?
Third, I am still flummoxed how Fischer was simply taken away from Justice Alito. Was this reassignment voluntary? Or was this like a scene in the Godfather, where Roberts made an offer that Alito could not refuse? It is difficult to imagine how difficult this term was for Alito. Barely two years ago, he was on top of the world, holding together a five-member bloc in Dobbs. Now he had only four majority opinions, and lost three! Roberts had seven signed opinions, and authored Anderson!
Fourth, I am still struck by the granular reporting that all four of Roberts's clerks were working on the opinion till the last minute. Was this some effort to heap praise on them, for shuttling back-and-forth between chambers? Or was it some attempt to place blame on them. For those who keep track of such things, here are the four:
1. Jason Bell (Harvard 2021 / Kovner (E.D.N.Y.) / Higginson)
2. Alexander Cave (Harvard 2020 / Srinivasan)
3. Benjamin Daus (Yale 2021 / Kovner (E.D.N.Y.) / Thapar)
4. Sakina Haji (Chicago 2021 / Newsom)
Fifth, we do not get much insights into Justice Barrett, other than that she frustrates her conservative colleagues. She is non-commital at conference, and then decides to break out on her own, with Justice Kagan as the wind beneath her wings. Justice Barrett continues to learn on the job, and figure things out as she goes along.
Sixth, Justice Jackson comes across as a savvy operator. She was in the majority for Fisher, as a way to get the Court to remand the case to Judge Chutkun. And I think she was poised to join the majority in Anderson on the "officer" stuff. Something happened there, but Kantor does not tell us. She is playing the game quite well.
I will close by renewing my call for Chief Justice Roberts to resign. He will never be John Marshall, or Fred Vinson for that matter. Historians will judge him harshly as a failed chief justice who kept digging his hole deeper and deeper, completely oblivious to how he is actually perceived. The only path forward is for him to stop caring about "institutionalism" and decide each case as a judge would decide the case. This game will never work.
