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Dashed-Off Daily Dobbs upDate: 3 May 2022
WHO DUN IT?
Welcome to Dashed-Off Daily Dobbs upDate, an exciting feature where I react to the latest news in American abortion law real fast, without (many) links or footnotes. Or editing.
Last night, I read Sam Alito’s draft majority opinion So You Don’t Have To. I stand by that analysis. As the new day dawns, I’m finding it fascinating how few people are actually criticizing the substance of the draft opinion. Twitter People were mad about some typos (it’s a first draft!) and Alito’s use of the word “abortionist” instead of the euphemistic “abortion provider.” Elie Mystal was ventilating about alternative constitutional defenses for abortion. But nobody has anything interesting to say about the content of the decision—because the decision is quite good! (And the thing it’s overturning is obviously terrible!) Adam Serwer at The Atlantic1 seemed to consider it important to at least ape criticism of the decision, but expressly starts his piece by saying he will be glossing over the details. He quickly misquotes Alito as making a comparison between Roe and Dred Scott (a comparison which, as I noted last night, Alito conspicuously avoided) before getting on with an atextual, unevidenced, unhinged screed. The comparison between Roe and Dred Scott came from Serwer’s own mind, not Alito’s pen, and I think that’s rather telling.
I was planning to start out today by telling you why I think the document is authentic, even though Alito’s usually bombastic voice seemed a restrained to me.
But no need! As I settled in for work at my day job today, the Supreme Court confirmed the authenticity of the document and launched an investigation (headed by the Marshal of the Supreme Court, not the FBI as had been rumored). Will they catch the guy (or gal?). I suspect they will. I don’t honestly think Supreme Court personnel have the tradecraft to know about tracking dots, much less all the other ways a leaker can be caught. We aren’t dealing with Deep Throat, here. We’re dealing with elderly people who struggle with their emails (the justices), whelps fresh out of law school who think they know things but don’t (clerks), and support staff (voted Most Likely To Get Away With It by a jury of me one minute ago). Their best hope of staying hidden is that Joshua Gerstein and Alexander Ward at Politico helped them figure out how to stay hidden.
It’s true that no Supreme Court leaker has been caught red-handed before, but there’s never been a leak like this before. It’s true that the Marshal of the Supreme Court has only limited power, but… oh, shoot, I’m talking myself out of this, aren’t I?
Whether or not we ever learn the leaker’s identity, it seems worth speculating about who did it and why. Also: why leak it to Politico? Why leak a draft from February? How did the leaker know the vote count? This whole post is speculation, but I did wild speculation about Dobbs almost exactly one year ago, and that post has held up pretty well. Let us consider our suspects:
A Progressive Clerk/Justice
Everyone’s mind went here first, right? Some shrill activist who used to try to shout down Federalist Society speakers at Yale Law School got picked to be a Supreme Court clerk. Like all the progressives, this clerk was alarmed by the initial vote to overturn Roe/Casey back in December, but resolved to wait and see whether Chief Justice Roberts could pick off one or more of the conservative justices for a weaker decision that erodes Roe/Casey without destroying it. On Sunday, at (or just after) the April 29th private conference of the justices, Court personnel learned that Roberts’ intense lobbying effort had failed. The Alito decision—still unthinkable to many progressives2—would stand.
Enraged by Justice Alito’s “extreme” decision,3 deluded enough by pro-choice propaganda about the popularity of Roe to think that leaking the decision would cause a major backlash and force the justices to reconsider, this person immediately sought out Gerstein and Ward, both of whom are reliable, friendly, establishment center-left progressives. The leak was published less than 36 hours after the conference.
A clerk who did this would have to be unbelievably arrogant to expect to get away with it. If caught, any Supreme Court clerk would be dismissed with a bad recommendation, will not be hireable, and may well be disbarred. Criminally prosecuted? Not out of the question.
A justice who did it, however (my mind went to Sotomayor, perhaps unfairly) might do this to make a statement—a declaration of war on her conservative colleagues, a renunciation of all norms in pursuit of (her vision of) justice. A justice would face no professional consequences for this. Impeachment is not on the table. There are not 17 Democratic votes in the Senate to convict any jurist for leaking this, and their base would crucify them if they tried. It’s therefore not out of the question that one of the justices did it.
Means: The leaker prints a copy of the Alito opinion on the office printer, hand-delivering it to Gerstein and Ward, whom the leaker views as friendly. Gerstein & Ward scan and post the document. In an off-the record interview, the leaker also gives them the details of the vote count.
Motive: To generate a political backlash, based on the belief that Roe/Casey are overwhelmingly popular with the American public. (This belief is mistaken, but that doesn’t change the motive!) The aim of the backlash would be to either pressure a conservative justice, probably one whose initials are BK, to change his vote and save Roe; or to persuade Senate Democrats to pack the Court; or to mobilize Democrats for the midterm elections; or to inspire political violence against conservative members of the Court, either intimidating them or harming them so that they are unable to vote against Roe/Casey.
Opportunity: Supreme Court justices and clerks have reasonably full access to the Court’s circulating opinions. They also are theoretically the only people alive who know the vote counts. Most of them can probably use a printer, although I’m not too sure about Breyer.
Why give Gerstein and Ward an opinion from three months ago, rather than the most recent draft (which is probably from this week)?
Why risk your entire career (you could be disbarred!) and destroy the internal trust of the whole Supreme Court to publish information that’s coming out in six weeks anyway? If the Democrats are going to be galvanized by this, they’ll be just as galvanized in June as in May.
Indeed, if anything, this actually weakens the overall political backlash against the decision. Leaking it makes the leak itself the center of the story, it catches abortion zealots laying the political groundwork for a backlash off-guard and too early, and it blunts the impact of a single dramatic day where Roe/Casey are overturned by stretching it out over weeks. It certainly makes it harder for Kagan to write a stirring dissent about the impact on the Court’s “legitimacy,” because the cat will already be out of the bag by then, any legitimacy damage already done!
On the other hand, if the goal is to flip a conservative’s vote—say, to get Kavanaugh to back off of full repeal and side with Roberts on a less sweeping decision—how could this approach be worth the costs? Progressives almost universally believe right now that a Roberts split-the-baby decision would still effectively overturn Roe/Casey and is just as bad (if not worse) than an Alito decision that actually overturns Roe/Casey. Did the leaker seriously believe they could push Kav + Roberts all the way to upholding Roe/Casey? Is the leaker that desperate? Or just that angry?
Final question: why would the leaker expect a leak to change a justice’s vote? The initial vote has already been leaked. Any changes from here on out would inevitably be seen as flip-flopping in the face of political backlash. Certain justices are desperate not to be hated, but even more desperate not to be seen as politically motivated flip-floppers—Kavanaugh more than most.
A Conservative Clerk/Justice
As we’ve just observed, leaking this decision actually benefits the conservatives in several ways. It minimizes and confuses the backlash against a down-with-Roe decision. It weakens the dissent. It may “lock in” wavering justices in the majority by making them fear looking like flip-floppers.
So maybe a conservative did it!
Like all the conservatives at SCOTUS, this hypothetical conservative clerk (or justice?) was overjoyed by the initial vote to overturn Roe/Casey back in December. On Sunday, however, at (or just after) the April 29th private conference of the justices, Court personnel learned that Roberts’ intense lobbying effort to pick off one of the conservative justices had succeeded. The Alito decision—the basic holding of which is, for conservative textualists, non-negotiable—would be abandoned in favor of a weaker opinion by Justice Roberts. This opinion would allow the Mississippi ban to stand but would not directly overturn Roe/Casey… but, since this is facially impossible under Roe/Casey, such a decision would inevitably have to reaffirm and retrench the supposed right to abortion even deeper in American constitutional law.
Disgusted by this outcome, knowing conservatives would share this fury if they could only see what was happening, our leaker goes to Politico and gives them the document. This leak proves that all five conservatives were on board with ending Roe/Casey at some point. (This would explain why the draft opinion is dated February: the current version has been watered down, this was discovered at the Sunday judicial conference, and this leak is revenge.)
If a decision then comes out in June that doesn’t end Roe/Casey, or is otherwise watered down from the February first draft, conservatism will excommunicate the defector and go to war with everything the defector ever loved.4 That would face the defector with a difficult choice, and perhaps cajole him into sticking with the majority after all.
Means: Same as above.
Motive: To blunt the political impact of the ultimate decision by smearing out the reaction across several weeks, and/or to stiffen the spine of a wavering conservative.
Opportunity: Same as above.
Problems: This plan all sounds very smart… except what happens when the leaker is caught? The backfire risk here is extremely high. If the Alito opinion was leaked in order to pressure a conservative defector to return to Alito’s majority… and word of that gets out… then it will make it politically and perhaps ethically impossible for the defector to come back into the fold. Was the leaker just so arrogant he assumed he’d get away with it?
Also, what self-respecting conservative would leak to Josh Gerstein and Alexander Ward? The last time there was a leak on the conservative side of the Court was in 2012. (Interestingly, that leak, according to rumors, came from Alito’s chambers—either Alito or one of his clerks.) They leaked it to National Review, a conservative magazine run by conservatives, not a faux-centrist magazine that wet its collective pants when Ben Shapiro wrote Playbook one day. That’s how a conservative leaks! What, was the leaker trying to cover his tracks by going to these guys?
He’s retiring, so he has nothing to lose! Why not leak Dobbs?
This theory is actually very bad. Yes, he’s retiring, but he’s Stephen Breyer. Leaking this decision would violate every principle he holds dear, it would go against his entire philosophy of the Court, and would deeply offend him personally. His whole book last year was basically, “Don’t pull crap like this,” and I think he meant it. I don’t think much of Breyer’s jurisprudence, but he’s an honest broker.
Some people just want to watch the world burn! Roberts has been trying to pressure one of the conservatives into voting his way. (He wants to weaken Roe/Casey, but not directly overturn them.) Perhaps he thought this would add to the pressure. Or perhaps—I like this idea better—perhaps Roberts has succeeded in hammering out a weaker majority or plurality opinion, one that perhaps guts Roe/Casey while technically leaving them on the books. The Left was primed to freak out about a decision like that as effectively overturning Roe. But if Roberts leaks this earlier, much harsher draft opinion first, maybe that new and softer opinion would be better received, right?
This would be very stupid, almost certainly would not work, and would violate every principle John Roberts has ever professed. He would be destroying the Court’s “legitimacy” and “norms” in order to save them. However, John Roberts is prone to self-delusion and, unlike Stephen Breyer, John Roberts has little integrity. I think this theory is very unlikely, but not outright bonkers.
Also: the prevailing theory for why Roberts put the Marshal of the Supreme Court in charge of the investigation, instead of calling in the FBI, is because he didn’t want to subject the entire Supreme Court staff to FBI interrogations. There are a lot more secrets the Court needs to keep, and outsourcing to the FBI puts those secrets at risk. But another explanation for Roberts avoiding the FBI is because he doesn’t want to get caught. He has to be seen doing something about the leak, but wants the investigation to die quietly. The FBI would catch him. He can almost certainly ensure the Marshal does not.
The 1973 Supreme Court leak was probably an employee at the Government Printing Office, not in the Supreme Court building at all. Also, as a member of I.T. staff at a medium-sized organization, I can assure you that, while most I.T. staff at the Supreme Court can not access this document, some definitely can… and those who can could also cover their tracks rather nicely, even framing somebody else. (Steal it out of a clerk’s email, and the clerk takes the blame!) Or, heck, maybe the janitor found a draft in the garbage!
Drafts get around. The number of people who are not justices or clerks who get to see those drafts is kept as small as possible, but that number is greater than zero. Obviously lots and lots of Americans have strong opinions about abortion. One of these chaps can easily call Politico. Maybe they had progressive reasons. Maybe they had conservative reasons. Maybe they just did it for the adrenaline rush! Have you ever leaked something? I have, once or twice, in obviously far less consequential contexts.5 It is a rush!
There’s a huge problem with this otherwise-pat theory, though: support staff would know lots and lots of things, but they shouldn’t know the vote count that was reported by Politico. Politico ran that information as though it were confirmed. I don’t think they’d take some rando employee’s word for it.
Espionage (or Hackers)
Do you trust the Supreme Court’s information security? I don’t. It’s gotta be weaker than Congress’s and far weaker than the White House’s. A determined nation-state could surely breach it. A sufficiently determined corporation might do it, or a very lucky and determined random hacker.
This would explain why the opinion we got is three months old. When you hack documents, you take what you find, and you rarely find everything. Maybe the hackers got the vote counts by reading emails, or with a well-placed, well-paid spy.
This would also explain one of the strangest facts about the whole case, which I haven’t mentioned yet: Josh Gerstein (Politico’s court reporter) shares a byline with Alexander Ward, who is emphatically a national security reporter. Ward has been on the Ukraine beat for months. What’s he doing on this story? Presumably, either the leaker knows him personally… or the leaker has crossed paths with him professionally. This makes sense for a foreign power.
So we have means and opportunity for a foreign power or corporation to do this.
But what’s the motive? The leaker didn’t leak a trove of documents. Only information related to Dobbs came out. This suggests a specific interest in Dobbs that doesn’t make a lot of sense for a nation-state or corporation. Nor would a nation-state or corporation benefit from exposing their access inside the Supreme Court like this. It’s much easier to stay embedded there and keep spying on the Court’s deliberations!
Any destabilizing effects this opinion will have on American politics are pretty much going to happen no matter what, so our adversaries don’t get any benefit from a leak, except making the unrest start a few weeks earlier. Your typical anarchist hacker isn’t going to target a single case, either. Hackers nearly always hit the entire institution—all the draft cases. The odds are remote that this document, in the most explosive case imaginable, is the only document a hacker comes across.
So a nation-state doesn’t make sense, a corporation doesn’t make sense, a “typical” hacker doesn’t make sense.
That leaves some kind of solo abortion zealot (on either side) who was so agitated about this decision that he or she hacked in and got very lucky. But there’s a lot of weird, crazy zealots out there on one case or another. The law of probabilities says that, eventually, some kook will break into the Court. But it’s unlikely that the very first kook to break in does it on the most explosive case in a decade or more.
Nah, I don’t buy it. I’ve heard it, but I don’t see either motive or opportunity.
The Central Intelligence Agency
Look, this list is supposed to be a comprehensive list of theories, and this is one I saw.
Okay, now this is just getting ridiculous.
Actually, I kind of like this one. The draft document and the vote count information, although both reported by the same Politico story, did not necessarily come from the same source!
In fact, we can have some confidence that there are multiple leaks at the Court right now. I count up to five:
The leaker who gave Politico the draft opinion.
The leaker who gave Politico the vote count information (most likely the same person, but maybe not).
The leaker who told CNN’s Joan Bikuspic that Roberts wasn’t prepared to join the majority opinion overturning Roe (almost definitely not the same person, so we have a minimum of two leakers).
The leaker who (probably maybe) tipped off the Wall Street Journal last week about Roberts’ lobbying to change a vote, and possibly whether that lobbying was succeeding. (This could be the same as leaker #3.)
The leaker(s?) who corroborated these stories under the traditional journalistic “two-source” rule. Journalism standards have fallen by the wayside, so I rather doubt this is being followed, but, if it is, then a lot of people had to leak a lot of times to get these stories verified and published.
If there are multiple leaks, it solves a lot of problems with some of these theories, especially the “support staff” theory. Possibly a support staffer committed the Unforgivable Sin of leaking the actual draft, and a clerk (likely not even realizing this) independently leaked (or merely confirmed?) the vote count information when Politico asked. Vote count stuff is still very bad to leak, according to Supreme Court culture, but it’s several orders of magnitude less bad than leaking a draft opinion. Thus, a clerk might accidentally get wrapped up in somebody else’s document leak without realizing it.
Most to least probable:
A conservative justice/clerk. This would be very bad for Roe/Casey opponents. This would both show that we are currently losing this case (despite the appearance of winning) and drastically increase the chances that we actually lose this case in June (or at least walk away with a half-victory: Mississippi’s law upheld but Roe/Casey retrenched). Nevertheless, this seems to me to be a simple, logical theory with very few problems. (30%)
Multiple leaks. This explanation has no obvious problems. It fits all the available facts. It just seems slightly too complicated to be the most likely. Also, I want this to be the answer so much more than #1 that I can’t trust my judgment. (20%)
A progressive justice/clerk. This would be very good, for the opposite reasons from #1. Just doesn’t make as much tactical sense as a conservative leak. (20%)
Support staff. It’s a good sign if this happens, because it means the draft decision more or less represents the current state of play, and isn’t being leaked in response to John Roberts’ lobbying or some other internal factor the staff doesn’t (shouldn’t) know about. It’s probably just being leaked for the sake of leaking it. (15%)
None of the above. (10%)
Roberts. I like the poetry of this, but c’mon. (5%)
[Biiiiiig gap here before the next most likely one.]
[Adding another one to emphasize the bigness of the gap.]
Ginni Thomas. Why? (0.5%)
The CIA. What? (0.2%)
Elon Musk. Huh? (0.1%)
Breyer. No. Absolutely not. (0%)
NOTE: Probabilities may add up to 100.8% due to
rounding because they are just a gut-check.
The Morality of the Leak
Depending on the circumstances, leaking this document may be morally justifiable, even if grossly improper (under ordinary circumstances), damaging to the Supreme Court, and potentially even criminal. I don’t hate the leaker, and I can easily imagine and sympathize with what was going through his or her head even if I don’t agree with it. Politics ain’t beanbag, and the lives of millions of unborn children are,6 unfortunately, a political subject right now.
However, I find it difficult to see a moral excuse for someone to leak this opinion and not come clean about it. That’s how someone with integrity does non-violent civil disobedience: you do the crime, you confess, you do the time. It seems to me that the leaker should come forward, now, and face the consequences. I’m open to persuasion on this, though.
That’s all I’ve got! Go away now.
Post-script: I’m inserting this at the very end of my editing process, because I just heard it, so it’s a post-script. Yesterday, I wrote:
Thomas asked Alito to write the majority, and Alito agreed.
(Sidebar: this is a little odd. Thomas is a better thinker and writer than Alito, and I think they both know that. So is Gorsuch, for that matter, although Gorsuch can be pretty high-handed. Kavanaugh has a more moderate reputation than any of those three. And Barrett is a woman, which matters not a whit legally, but a great deal politically. Alito seems like the worst person to write this opinion, of the five. Yet the assignment was made.)
A friend of mine sent me the Advisory Opinions podcast from today, featuring David French and Sarah Isgur, and French has a very plausible theory for why Thomas assigned Alito rather than writing himself: French thinks that Thomas is writing a separate concurrence which embraces the theory that unborn children are “persons” under the 14th Amendment and, therefore, abortion bans are not only constitutionally permissible but constitutionally required.
This concurrence would have no chance of winning a majority today, but, in ten or fifteen years…? Clarence Thomas has always played the long game. He often stakes out a pretty radical (but correct) position, publishes that position, lets everyone sneer at him, and then gradually his ideas end up influencing enough people over to his side that he wins. The Personhood idea, as John Finnis & Robert George showed in their amicus brief, is radical, but correct.
But if Thomas is writing a concurrence, he can’t write the majority. This makes sense. Alito may have gotten the majority, then, because Barrett is considered too junior (or too obviously a political choice) to write it, Kavanaugh is too wobbly, and Gorsuch has too hard a time making the rhetorical compromises needed to hold a fragile majority.
I don’t know if this theory is right, but it’s the first explanation of Alito’s authorship that makes sense to me.
Also, French & Isgur, who have several reasons to know better than me, don’t think the leaker will get caught.
Future programming notes: my plan was to finish a piece this month about whether a right to abortion is protected by the 13th Amendment (spoilers: no. Sorry, Koppelman). I would have posted that a few weeks in advance of the likely release of Dobbs, with plenty of time to rest up before. I guess I still plan to finish that, but my priorities are a bit scrambled right now, and I don’t really know what the next article I post will be. However, I do have a book review coming out at Law & Liberty this week, and you will definitely get an email notification from De Civitate about that when it goes up.
UPDATE(S) 5 May 2022: In response to Facebook comments, I have assigned gut-level probabilities to each of the possible outcomes in my ranking above.
Also: Sen. Mike Lee writes about the Supreme Court’s information security at Deseret News:
Not insurmountable problems for a well-resourced hacker or spy, but it sounds like they aren’t sharing opinion drafts in Sharepoint, ya know!
Incidentally, he personally is a key reason I cancelled my Atlantic subscription.
As of yesterday, PredictIt (a market where people have to put actual money on their bets instead of just mouthing off) still showed a 15% chance that not only would Roe/Casey be upheld, but the Mississippi 15-week ban would actually be struck down! As we can see today, the only world in which the Mississippi ban is struck down is one in which not one but two conservative justices die between now and June 30th.
The decision is actually pretty restrained, and decides the case on one of the narrowest available grounds, but Law School Leftist activists don’t usually see conservative-leaning outcomes that way.
The defector would deserve this. It would be a betrayal of his judicial oath in favor of politicking.
Obviously, I cannot give you details about this.
…and, in the eyes of many millions of mistaken-but-sincere Americans, the bodily liberty of millions of American women…