SCOTUSBLOG-How the leak might have happened

[LetMyPeopleVote]

There are three separate leaks with the release of the opinion being the last leak. The WSJ was told that the five judges had decided to overturn Roe v Wade and there was another leak to POLITICO. Alito's opinion is so extreme and unpolished that it seems likely that the leak was from a conservative to try to keep Kavanagh or Barrett from peeling off to join a lest extreme opinion being pushed by Roberts.

Link to tweet

https://www.scotusblog.com/2022/05/how-the-leak-might-have-happened/

Start from the premise that there were actually (at least) two leakers, and three leaks. The first leak was to the Wall Street Journal editorial board last week. In substance, it was that the court had voted to overrule Roe v. Wade, but that the precise outcome remains in doubt because Chief Justice John Roberts is trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to a more moderate position that would uphold the Mississippi abortion restriction without formally overturning Roe.

While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito is drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito did draft that opinion.

The second leak was to Politico. Likely within the past few days, a person familiar with the court’s deliberations told them that five members of the court – Alito, Kavanaugh, and Barrett, along with Justices Clarence Thomas and Neil Gorsuch – originally voted to overturn Roe and that remains the current vote. In addition, the position of the chief justice is unclear. The remaining justices are dissenting.

The third leak was also to Politico. It was presumably – but not certainly – by the same person. Someone provided them with Alito’s Feb. 10 draft opinion.

Note as well what was not leaked. Politico seemingly was not told which justices had joined the Alito opinion. (The fact that five justices voted in December to overturn Roe as a general matter does not mean that all five of them necessarily would have agreed to sign on to Alito’s draft.) And Politico apparently was not provided with a subsequent draft, which ordinarily would have circulated to the court by now – in response to comments from some members of the would-be majority.

Here is what you would conclude is the state of play if you took all the leaks as both accurate and pretty complete (assumptions that, admittedly, are by no means certain). Alito’s opinion probably has been joined by Thomas and Gorsuch. Kavanaugh and Barrett have yet to join – most likely because they are waiting to consider an alternative opinion from the chief justice.

Again, the Alito opinion is poorly drafted and relies on cites from the 1700s that are pure crap.

Right now, I believe that the opinion was leaked by conservatives to keep Roberts from peeling off a couple of judges for a less extreme position that would not overruled Roe.

[LeftInTX]

1. Article states that someone on the left likely leaked Alito's draft opinion.

The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and – with important caveats – substantive due process rights more broadly. And as a first draft – without the benefit of later refinement – it does not yet present the critique of Roe in its most persuasive form.

It is also important to look at the leak of the opinion through the lens of the fact that someone – almost certainly a conservative – had just before leaked the court’s tentative decision and the state of the voting to The Wall Street Journal. That leak was itself an extraordinary and unethical breach of confidences and certainly caused very deep concern inside the court.

My guess is that someone on the left felt somewhat justified in releasing the opinion in response. Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett were considering. That leak was a historically unprecedented violation of the deepest and most solemn trust among the justices and the court’s staff. It wounded the institution.

[Hoyt]

2. Leaker really doesn't matter, but think leaker was someone shocked at Alito's 1700s crud.

That could be a liberal Justice, one of their clerks, John Roberts, or even one of the other Justices or their clerks who think Alito is nuts.

Think most on the hard-right would keep their head down, not say a word, and pray Alito's junk makes the final cut.

Hopefully, the formal opinion will not be as final as Alito's draft. But gotta keep protesting.

[Baitball Blogger]

3. Well, I guess Cruz is a moron, after all.

[DallasNE]

4. "Unpolished"

What an understatement. When I first read it I commened that it looked like it had been written by a 10th grader.

[LetMyPeopleVote]

5. How the future of Roe is testing Roberts's clout on Supreme Court

There have been no doubt other drafts. There is some speculation that a conservative released this draft to try to keep Roberts from peeling off a vote for a more moderate opinion

Link to tweet

https://www.washingtonpost.com/politics/2022/05/07/supreme-court-abortion-roe-roberts-alito/

The mere existence of the draft indicated that five justices had voted at least tentatively to reject the incremental approach of Roberts to restricting abortion rights. Instead, they would reverse Roe after nearly 50 years of guaranteeing a right to abortion that could not be outlawed by the states......

It is another signal that the 67-year-old Roberts, hailed by scholars just a few years ago as one of the most powerful chief justices in history, is not in control of the process as the court readies its most influential decision in decades.

There is also reason to believe Roberts has not given up. Many who know him well and have watched his maneuvering of the court through other issues are certain he is still preparing his own opinion in hopes he might draw at least one of the court’s newest conservatives to his side. Such an outcome might save the 1973 ruling on Roe and the subsequent affirming 1992 decision, Planned Parenthood v. Casey, while severely limiting their protections.....

Roberts seemed to get no takers for a compromise that would erase the clear rule that Roe and Casey share, which is that states may not forbid abortions before viability, the point at which a fetus would survive outside the womb, usually 22 to 24 weeks.

Most observers of the court believe Roberts is still promoting a decision that would remove the viability line but otherwise keep Roe and Casey intact. Both liberals and conservatives are skeptical it can be done.

Right now it appears that the leaks are from a conservative who wants to keep five votes for Alito's radical opinion