This week’s leak of the draft majority opinion in Dobbs, the Mississippi abortion case, is unprecedented. Leaks from the Court have occurred before, but this leak is different, a potentially shattering event, both because of the leaker’s probable motives and the leak’s probable effects. Most likely, the leaker set out to intimidate one or more of the justices and affect the outcome of the case. Alternatively, the leaker hoped to destroy the Court as an institution—in the approving phrase of one progressive commentator, to “burn this place down.” The long-term consequences of the leak may be severe.
I know that many, on both sides of the abortion debate, will think that focusing on the danger to the Court misses the point. Surely, the main thing is whether the Constitution contains a right to abortion, not whether the justices suffer some passing embarrassment. But if the rule of law is to survive, Americans will need to maintain the Court as a functioning institution. This week’s disclosure poses grave risks in that regard.
Many pundits have asserted that what makes disclosure of the Dobbs draft shocking is that, unlike other Washington institutions, the Court “doesn’t leak.” That’s true as a comparative statement. The Court takes disclosures extremely seriously and leaks much less frequently than other branches of our national government. When I clerked at the Court thirty years ago, the chief justice strongly admonished me and other law clerks not to reveal the Court’s internal deliberations. But leaks are not unheard of. In the nineteenth century, newspapers reported on the Court’s internal deliberations in Dred Scott and revealed ahead of time the outcome of an important Commerce Clause case. In 1919, a law clerk resigned because he allegedly leaked inside information about a Court ruling to make a profit on Wall Street.
More recently, in the 1970s, the outcome of Roe itself leaked shortly before the Court issued its opinion. Woodward and Armstrong had inside sources, including at least one justice, for their 1979 book, The Brethren. Former law clerks cooperated with Vanity Fair in 2004 to reveal the court's internal deliberations in Bush v. Gore, which the Court had decided four years previously. After the first Obamacare decision in 2012, inside sources disclosed that Chief Justice Roberts had changed his initial vote in that case. A couple of years ago, sources leaked that some conservative justices had decided to vote with progressives in Bostock, the Title VII transgender rights case, before the ruling came down. There are other examples as well.
The probable motivations of the leaker and the probable consequences of the Dobbs leak make this episode particularly shocking. I have no inside knowledge, but to understand the leaker’s likely motives, consider the nature of the leak and its timing. The justices cast their initial votes in Dobbs after they heard argument in December. Apparently, at that time, five justices voted to overturn Roe/Casey, and the senior justice among them, apparently Justice Thomas, assigned the task of writing the Court’s opinion to Justice Alito. Alito, we now know, circulated a first draft of his opinion in February, after which the justices would have had a couple of months—until now—to mull it over and decide, finally, whether to join it or write separately, either concurrences or dissents.
We know from separate leaks—there were two or three leaks this week, in fact, not one—that Chief Justice Roberts has written a draft concurrence, a narrower opinion than Justice Alito’s that would uphold the Mississippi restriction but not overrule Roe/Casey. Roberts apparently has been trying to persuade one member of Alito’s majority, most likely Justice Kavanaugh, to “flip”: to change his vote and join the chief justice. (This is unusual but not unprecedented, as Roberts's own reported flip in the first Obamacare case demonstrates; indeed, Justice Kavanaugh’s former boss, Anthony Kennedy, famously switched his vote after conference in Casey itself, a fact we know from subsequent leaks.) That would be very important as a legal matter. Although the result in Dobbs would remain the same, there would only be four votes for overruling Roe/Casey. Those decisions, in theory, would remain on the books.
Only a limited number of people at the Court would have had access to Justice Alito’s draft. The justices themselves would have had access, of course, but it is extremely unlikely any of them would have released it. The norms against such behavior are too strong; besides, releasing a draft would permanently destroy one’s relationship with one’s colleagues and not be in anyone's interest. A few of the permanent Court staff would have had access to the opinion, but they also would lack incentives to do this. Most likely, the release comes from one of the justices’ law clerks. What might motivate a law clerk to do something like this?
In disclosing the draft opinion now, rather than in February when it circulated, the leaker presumably means to do one of two things. First, the leaker might hope that public pressure will intimidate one or more of the justices and affect the outcome of the case. Possibly, the leaker is a conservative clerk trying to keep Alito’s majority intact, on the theory that it would be too embarrassing for a justice to change his or her mind in these circumstances. More likely, though, the leaker is a progressive who hopes an angry public reaction will make a member of Alito’s majority reconsider.
Alternatively, the leaker might know that Justice Alito's majority is solid and that trying to change anyone's mind is useless. In that case, the leaker’s goal likely would be, quite simply, to wreck the Court as an institution—because that is what a leak like this accomplishes. It’s not a matter of letting daylight in upon magic and destroying the oracular mystique of the Court. The justices need to trust one another to deliberate effectively. They need to know that drafts can be revised and improved. They need to know, most of all, that they can do their work without external interference, at least until they release their decisions, which citizens are then free to praise or condemn.
Past leaks from law clerks typically have come after the Court has issued a decision. They often seem explained by desires to set the record straight for history or, perhaps, to demonstrate the leaker's own significance (which, as a former clerk, I can attest to be typically little). If they come before a decision, leaks are usually spare and vague, hints at a likely vote tally or outcome. Such leaks do little to change the day-to-day workings of the Court.
But the leak of an entire draft opinion in the middle of deliberations in a vitally important case suggests something very different, a desire either to bully or destroy the Court as an effective institution. After this episode, justices will feel less secure about the confidentiality of their deliberations and think twice about what they put in drafts. The work of the Court will inevitably suffer. That is what makes this leak so damaging, however one feels about the ultimate issue at stake.
Mark Movsesian is the Frederick A. Whitney Professor and Co-Director of the Center for Law and Religion at St. John's University.
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