Who leaked the Supreme Court draft? Here are 4 theories (2023)

Someone inside the Supreme Court leaked a draft of a majority opinion authored by Justice Samuel Alito that would have overturned two landmark decisions on abortion rights, Roe v. Wade andfamily planv. casey, apolitician.we know.

But we don't know who did it or why they did it. While the main story here is that the Supreme Court is now five votes away from denying women reproductive rights, the source of the leak is still important. Indeed, abortion rights are important because they help the public understand the behind-the-scenes politics within the court that could affect the ultimate outcome of Dobbs v. Trump. Jackson Women's Health Organization.

The number of people who can leak draft opinions from the Supreme Court to the media is very limited. There are nine judges, their law clerks and their support staff.

Here are the current theories and why they may or may not affect the results here.

a liberal lawyer leaked it

After Politico broke the story about the leaked opinion, initial online speculation was that it must have been done by a liberal lawyer in a fit of rage. Although the theory initially attracted supporters from some left-wing groups, praising"Brave staff"It has come to dominate right-wing responses.

Republican political advisers and media operatives quickly determined that the burglar must have been a certain employee of one of the liberal justices. They even named the employee and posted a photo of them online. (The Huffington Post did not name the person to avoid unconfirmed identification.)

However, there is no evidence that this person is a whistleblower, other than the fact that he is a liberal who opposed the appointment of Judge Brett Kavanaugh, as many liberal or left-wing lawyers do, and at one point spoke to one of the two politicians. The journalist who revealed the leak.

The theory seems plausible. But that doesn't make much sense.

First, the court's three-judge liberal bloc lacks real power, and leaking the draft won't fix that. Liberal judges have to convince twodemocraticFor their part, it's a very tall mountain to climb on a conservative movement priority issue like abortion.

There is still time. The leaked draft opinion was written in February. Why wait months for a leak? Amy Kapczynski, a professor at Yale Law School and a former Supreme Court clerk, said liberals have long been in the minority but still try to influence the majority they oppose by making small changes at the margins.tweetsTuesday.

"Why would something leak and undermine the whole strategy?" Kapuchinski asked.

Credit McNamee via Getty Images

The leaker is likely a liberal lawyer out of anger or displeasure, or hoping to become a hero from the MSDNC fake news company or whoever.

But that doesn't make sense if the theory is that they're trying to change the outcome. Sure, conservatives will claim that Democrats will now "revolt" on the Supreme Court, but you'd have to put a pole through your brain to believe that.

a conservative lawyer leaked it

Another theory is that a conservative jurist leaked the opinion to ensure it was final. There's also no proof that the theory is true, but it has something to back it up: It's rooted in the history and structure that underlies the inner workings of the Supreme Court.

Supreme Court hearings tend to work like this: The outcome of a decision is voted on, and then the senior justice distributes the opinion to the caucus members who received five or more votes. The decision is written and then circulated for editing and for the other judges to write their dissenting and concurring opinions. First I agree and then I disagree. The majority opinion can then be edited into a final draft.

"This is the right time for synchronization," Kapczynski saidtweetsTuesday. "I think the best option is a recent statement by Chief Justice Roberts that is more moderate."

This is when the justices can begin to change their minds about the original opinion they expressed support for.

So, in theory, Roberts could try to remove members of the original five justices who were part of Alito's majority to secure an opinion restricting abortion but not overriding Roe and Casey.

AP Photo/Carolyn Kaster

While Roberts is known for her opposition to abortion, she has always cited public opinion as her primary concern for the court's legitimacy. For this reason, he tries to hold back the social changes sought by the conservatives in the palace. Notably, he did not side with the other five conservative justices to allow Texas' recent anti-abortion law to go into effect or join Alito's leaked majority opinion.

If a Tory minister wants to prevent a chancellor from the original five from jumping, leaking the plan could be one way. If the court were to issue an opinion in June showing that Brett Kavanaugh or Amy Coney Barrett were involved in an opinion that did not affect Roy, it would be attacked asDavid Suter.

Signs of conservative fears of Roberts' moderating influence have surfaced in the conservative media. reachWall Street Journal editorialOn April 26, he warned that Roberts "may now be trying to change another justice's position," just as Roberts himself changed his position in the 2012 case, eventually writing an opinion defending the Affordable Care Act. The editorial even "speculates" that Alito is the next author of the majority opinion.

"We hope it does not succeed, in the interest of the courts and the country," the editorial said.

The warning shot came within days of Politico reporters likely getting their hands on the leaked memo: They were working on the May 1 story.New York Times, four days after the Wall Street Journal editorial.

"If a conservative clerk wants to prevent the original five-judge panel from jumping ship, leaking the plan could be a one-way street."

This is not the first time conservative media has gained insight into the inner workings of the court.

In May 2012, conservative pundits and the media wrote a series of columns warning that Roberts might have wavered and decided to side with liberals on the Affordable Care Act. The existence of these columns seems to indicate that the Conservative Party lost Roberts and that there was some sort of leakage within the courts.

National Review published an op-ed on May 24, 2012, calling for Roberts to ignore calls for him to back liberals and defend the health care mandate. Then, on May 26, 2012, George Will published an article titled: "liberty lobby judge roberts”

"Shortly after the court leaked that Roberts' vote was 'swinging,' the right sent out a bat signal with a clear message: We need to tell the Supreme Court to grow a backbone." Conservative Josh Blackman (Blackman) Attorney,he wrote in his book"Unprecedented: A Constitutional Challenge to Obamacare".

George Will and others answered the call. The Conservatives, who have been mum on the outcome of the case since the session, rallied in the final stages as the final vote was hotly debated in the courts.

In 2019, around the Supreme Court's decision in Bostock County v. Clayton County, the county argued that gay and transgender people are protected from discrimination under the Civil Rights Act. After hearing the case for a month,national reviewYeswall street magazineHe published articles designed to distance conservative Justice Neil Gorsuch from textualist arguments advanced by liberal Justice Elena Kagan.

Those public appeals failed, and Gorsuch wrote the majority opinion based on his original understanding of the text of the Civil Rights Act.

CHANDAN KHANNA via Getty Images

Leakage of conservative personnel The theory of Dobbs v. Trump Jackson has a point. There is a purpose beyond self-aggrandizement or influence: It could be aimed at preventing any of the five justices who signed on to the leaked Alito opinion from choosing a more moderate decision.

If that's the reason for the leak, it's an important statement about the infighting in the courts, an opaque and unelected body that wields incredible power over Americans' lives.

Roberts or one of his employees leaked it

Now we're getting into weirder theories, but let's get this out of the way anyway.

"The most meaningful story about the leaks is actually Chief Justice Roberts trying to articulate to the undecided justices what the answer would be," said Sean Trender, senior election analyst at Real Clear Politics.tweetsTuesday. "But it's also completely out of character for Roberts; burning cities to save cities is not his style."

There is some logic to this, but as Trende points out, there is nothing more out of character for Roberts or one of his employees to do so. It goes against everything he has done as chief justice, even though this leaked opinion is. However, it is hard to imagine Mr. Legitimacy of the Court allowing the leak and then issuing a press release announcing an investigation into the leak.

other theories

Maybe the comment was leaked by a support person who found a copy accidentally left on the printer? Or is it from a computer hacker?

These theories are highly improbable. The Politico article includes key information from "a person familiar with the court's deliberations," explaining that "four other Republican judicial appointees, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coniba Leiter, after the justices heard oral arguments in December, the line-up remained unchanged as of this week."

This information is critical to the story and may be information you can only learn as or from a judge or paralegal.