It was Alito! In the conservatory! With the lead pipe!

Following the clues suggests one logical conclusion about who might be behind tonight's massive SCOTUS leak in Dobbs... let's ask: cui bono?

Okay, so, how on earth did Politico get a leaked copy of a draft majority opinion in one of the most important, impactful, and closely-watched cases of this Supreme Court term? In my whole life, I can’t remember a single occasion when we saw a draft of a SCOTUS decision before it was officially posted. What could possibly account for this unprecedented event? Two theories:

1) A law clerk for one of the liberal justices—or perhaps for one of the other justices but who just happened to feel strongly about this issue—saw a copy of the opinion circulating in advance and thought: This is horrible! The world must know so they can try to put a stop to it!

This seems implausible, however. Why? Well, it would be an immense risk, and not one worth taking, because it would be almost certain to backfire. Leaking an advance copy of a majority opinion wouldn’t prompt anyone to change their mind, no matter the public outcry. To the contrary, public revulsion would only prompt the court to double down. They would say “well, now we have to prove that we aren’t swayed in our judgement of the law by public sentiment or media pressure.” Willfully leaking the opinion in advance would therefore be a very ill-advised strategy, if the goal was really to get one or more of the justices to change their mind…

Which leads us to theory number two:

2) A law clerk for one of the conservative judges, or one of the conservative judges themselves (*cough* Alito *cough*) leaked the draft in order to achieve precisely the opposite effect—namely, that of forcing the conservatives to double down. Now, the Politico article asserts that this draft decision was first circulated in February, some time after a conference in which five conservative justices (Alito, Barrett, Thomas, Kavanaugh, and Gorsuch) voted to overturn Roe completely.

But there have been signs in recent weeks (and I owe it entirely to today’s episode of the Strict Scrutiny podcast for alerting me to this) that Roberts might in fact have subsequently made some progress in swaying one or more of these justices to stop short of completely dismantling the Roe and Casey framework. Roberts, at the oral argument in Dobbs, seemed inclined to propose a compromise. Sotomayor, Kagan, and Breyer would preserve Roe and Casey; Thomas, Barrett, and Alito are unambiguous votes to overturn Roe in its entirety. Roberts, however, seemed inclined to keep the framework of Casey partly in place, but to move up the point in a pregnancy after which states can regulate abortion (Roberts hinted he would place that point at 15 weeks into a pregnancy).

If this really is Roberts’ preference, it seems conceivable he could talk either Kavanaugh or Gorsuch into going along with him, and maybe both, creating a 3-3-3 split decision with the tie going to the opinion that preserves the status quo.

And indeed, there was a rather mysterious op-ed recently in the the Wall Street Journal (thanks again Strict Scrutiny, for bringing this piece to my attention) that seems to imply this is precisely what was happening. On April 26, the WSJ editorial board claimed that Roberts “may be trying” to sway one of the conservative justices to side with the liberals (or, on my theory, to adopt Roberts’ “compromise” approach). If this is accurate, is raises questions about who was talking to the WSJ board behind the scenes. It seems likely on the basis of this op-ed to conclude that one of the conservative justices or one of their clerks was already leaking material to the media at the time this op-ed was written.

If that same source, whoever they might be, wanted to undermine Roberts’ quest to persuade one of the conservatives to side with the liberals, they could hardly do better than to leak the majority’s draft opinion. By leaking this draft—especially if it is not actually settled and some of the justices might be in the process of changing their minds—the leaker puts the justices in a bind. If any of them did subsequently change their vote, it would create the impression—however untrue—that they had done so only in response to public outcry and pressure following the leak. They would therefore feel obliged to double down on the draft decision so as to prove: “see, we never change our minds in response to things in the media or any public influence campaigns.”

The leaker would thus leave his fellow conservative justices without a choice. Even if they had been thinking about changing their minds for wholly unrelated reasons—such as Roberts’ purported behind-the-scenes efforts to persuade them to preserve at least some elements of stare decisis and women’s substantive due process rights in this case—they might well feel forced to reverse course and stick with the original Alito-authored draft instead, so as to avoid creating the false impression of a successful public influence or media pressure campaign.

And who would most want the other justices to keep their names on the draft (*cough* because he wrote it and his name’s on it)? Who is the most ill-tempered and aggressively partisan justice currently on the bench? Who has been in a particularly rotten mood in recent oral arguments in a way that suggests he might be contemplating something just this extreme?

I’m not saying I can prove it was Alito. But the circumstantial evidence points his way. Therefore, Alito—j’accuse!

If my theory is correct, it would be a devious strategy that could very well cause Alito to succeed at his own nefarious purpose. Everyone else, though, would lose: 1) women whose constitutional rights will be subverted by the ruling, 2) justices whose internal deliberations should be kept confidential for just this reason—that is, in order to be able to change their minds in response to reasoned arguments without creating the false impression that they were motivated to do so purely by public pressure, and 3) any member of the public who has an interest in preserving the credibility of the court as an institution, the rule of law, and the legitimacy of our constitutional order.

To whoever did this—was it worth it?

(*written immediately after seeing the news about the leak—views expressed may be subject to change as new facts come to light. And look, not saying Alito definitely did it… but you know— cui bono!)