The old news of the leak of Justice Alito’s draft opinion last May overruling Roe v. Wade has now been swamped by the new news of the Supreme Court’s final opinion a month later.
That final opinion, almost identical to Alito’s draft and joined by five of the nine Justices, held that Roe was wrong. As a matter of fact and law, the Constitution never mentions, alludes to, or implies a Constitutional right to abortion.
(Notice my use of the word “abortion” to identify abortion. Because “abortion” has a bad connotation, advocates of it seek to rebrand or euphemize the procedure with wooly obfuscation like “a woman’s right to choose” or “reproductive rights.” But “a woman’s right to choose” is ambiguous unless you think that abortion is the only thing women have the right to make a choice about. And “reproductive rights” is a deliberate misnomer, much like “Planned Parenthood.” This is not about the right to reproduce or become a parent, but the right not to.)
The Supreme Court’s decision returns the abortion question to the state legislatures elected by the people or the state constitutions enacted and amended by the people. The states are already going in different directions on the issue, as our system of Federalism permits and even intends.
This is a bad outcome only if you think that abortion is a moral wrong which, according to at least five unelected lawyers in black robes appointed for life, is barred sub silentio by the Constitution or you think abortion is a moral right that is granted sub silentio by that same Constitution.
I’m in neither camp. I’m instead in the camp that the Constitution says what it says and doesn’t say what it doesn’t say. I think this Supreme Court decision is not a bad outcome at all. Let the people and their elected legislatures puzzle out this philosophical, moral and religious – but not legal or Constitutional – issue. That’s what the Founders intended for such issues.
But there’s another question still unresolved. Who leaked Justice Alito’s draft opinion?
That question is important. This unprecedented leak shook the Court to its marble foundations. In the context of the Supreme Court, the leak was far worse than Watergate in the context of the presidency or the Pentagon Papers in the context of the military. This breach of confidence undermined the Justices’ deliberations, reputations, and authority.
Chief Justice John Roberts recognized the cataclysmic nature of the leak. In a rare press release, he called the leak “absolutely appalling” and said he was turning the matter over to law enforcement.
That was a couple of months ago. Since then, crickets.
Several theories have been advanced regarding the identity of the leaker. The obvious one is that it was a law clerk for one of the three liberal dissenting Justices who hoped the leak would generate such an outcry that the majority Justices would back down. Indeed, there are several law clerks with a history of abortion advocacy.
But I doubt this theory that it was a law clerk. Ivy League law school graduates are a mercantile bunch. I doubt they would jeopardize a hard-earned and lucrative career for this political Hail Mary.
Another theory is that the leaker was one of the dissenting Justices who naively thought the same – that the leak would pressure at least one of the majority Justices to change his or her mind.
Yet another theory is from the reverse-head-fake-counter-flop school. It was one of the five Justices who joined the Court’s opinion overruling Roe. The theory is that one of the other four were wavering. The leaker strategized that the leak would lock that wavering Justice into his or her tentative position, because changing his or her vote after the leak would reflect badly on the size of his or her cojones.
No Supreme Court Justice wants to be shown to have little cojones. These people could make ten-fold their government salary in private practice. They instead chose black robes, an audience that stands when they enter the room, and a raised dais from which they look down upon and interrupt those rich lawyers who chose the money route, all because it says they have big cojones. Without the cojones perk, the job offers no rewards.
But I think this theory is too clever by half. I can’t imagine a Justice in the majority thinking, “Gee, so-and-so Justice is wavering. How can I lock that Justice in to the preliminary vote on the case? I know, I’ll leak the draft opinion, and so he/she won’t be able to change his/her mind without looking like a cojones-lacking Justice.”
And so, I think the second theory is correct. One of the three dissenting Justices leaked the opinion in the hope that the ensuing protests would pressure at least one in the majority to change his or her mind. That obviously didn’t work, and if anything it may have had the opposite effect.
I suspect that the status of the law enforcement investigation is as follows. Law enforcement has interviewed the thirty-some clerks and reviewed their phone calls and emails. They’ve been cleared, else we’d have heard otherwise by now.
That leaves the Justices.
I suspect that Roberts stopped the investigation before law enforcement interviewed the Justices and reviewed their emails and phone records. Because he doesn’t want to deal with what he knows the investigators would find.
Roberts has always been obsessed with the status and prestige of the Court, which is not a bad thing for a Chief Justice to be obsessed about. Indeed, he refused to join the majority opinion in this case – instead writing a separate opinion saying he wanted to uphold the Mississippi law limiting abortion to 15 weeks without outright overruling Roe – because he wanted to conserve the power of the Court by issuing a small ruling and not at big one.
That approach is defensible. Overbroad decisions have the effect of binding future litigants who have not had their day in court, based on hypothetical and un-litigated facts. To avoid that, courts usually issue rulings no bigger than necessary to decide the case in front of them.
I thought the Court would approach this case that way. Roe was bad law, but it was not necessary to outright overrule it in order to uphold the Mississippi law.
Now, again trying to conserve the Court’s status and prestige, Roberts probably believes that implicating a sitting Supreme Court Justice in a criminal leak would be even more destructive to the Court than the leak itself.
He may be right. But still, as Chief Justice, isn’t part of his job description to be the chief of justice?
One last morsel for thought: If the leaker was indeed a Justice, the liberal reporter at Politico who broke the story and published the draft opinion now has kompromat on her.
Glenn Beaton practiced law in the federal courts, including the Supreme Court.
the Aspen beat 
I’m not a lawyer and I don’t play one on T.V., so I’m indebted to you, Glenn, for providing a lawyer’s perspective on this whole mess. I was especially interested in your take on Roberts. The Chief Justice has long angered me. His stance on O-Care really bothered me, but his refusal to hear the states suit against Pennsylvania, Wisconsin, et.al. re elections really topped the cake. The one thing that the Constitution specifically states is the purpose of the Supreme Court (settling disputes among the states) and Roberts ducks it by refusing to even hear the suit. That act was, IMHO, an act of craven cowardice and dereliction of duty. For that alone he should be removed from office. Other than death or retirement, I don’t know how that could be accomplished and no, I’m not suggesting putting out a hit on him, but the fact is, he has failed in his sworn duty.
100% Agree with you about Robert who appears to swish his robes when it comes to making decisions. I also suspect the leaker is the “wise Latina.”
I’m no lawyer either, so I get to fully agree with you. It’s too bad Paxton’s suit can’t be brought today, since the Court’s ruling that “Texas has not demonstrated a judicially cognizant interest in the manner in which another State conducts its elections” would bring the house down with laughter, if not a thunderbolt from above. Has any state suffered greater harms than Texas at the hands of the present regime? Does any state have a greater claim to having been knifed in the back by Pennsylvania, Michigan, Wisconsin, et al?
I agree, the decision on the Affordable Care Act was awful, and the decision not to hear the states’ case on the election was unconscionable!
Robert’s leaked it to try a pull a justice to his side, or, to lesson the blow to the public knowing he could not change any minds.
I thought the socialists would be burning 🔥 cities over this. Maybe the leak prevented that.
I think Chief Justice Roberts is a coward. Apparently, the reason that SCOTUS refused to hear any the very legitimate cases concerning the rampant fraud in the 2020 election (tens of thousands of irregularities were reported, almost 100% of them, benefiting Joe Biden) was because Roberts was terrified that the Left would commence with its (typical) riots if the election were overturned.
As for the leak of the decision, I agree with you Glenn, and further, I nominate the wise Latina as the culprit. (My reasoning is that she was a diversity hire, (she received B’s in her major subject as an undergraduate) and she doesn’t have the sophistication (or intelligence) to care very much about the ravages of (further) politicization of the Court.) btw, one statistic that we won’t hear reported very often is that 60% of Americans support the overturning of Roe.
I remember reading a few years back that Roberts had become a Washington fixture and loved all the parties, social activities and attention that it brought him. Would totally explain his indefensible decision on Obamacare. Don’t want to piss off all the liberal elites in DC.
If it was one of the justices that leaked the memo it could be considered an impeachable offense which then involves Congress and the (probably remote) possibility that they remove a justice who would have to be replaced by the President. Timing matters. If it was Sotomayor, Kagan, or Gorsuch, then they would want a Democrat President to nominate a replacement (if one was removed). If it was one of the others, they would want a Republican President to do so. I wonder if this figures into Roberts’ calculation.
Why would Gorsuch want a Democratic president to replace him? He was appointed by a Republican.
Isn’t it possible that Justice Roberts himself leaked it? He was already astride the fence with his concurring opinion, so if one of the other four justices flipped, he could come down on the other side or, more likely, compel the other three Justices to go along with his gone-but-not-forgotten interpretation.
Aha! You should be a Hollywood screenwriter. This would make for the perfect surprise ending. Of course, those who know Roberts probably wouldn’t be surprised.
You are correct!! The perfect crime as the criminal had complete control of the subsequent investigation and it is my recollection that he shortly cut off any outside agency from being involved and made himself the “lead investigator”. The only fly in his ointment would be the Politico reporter. Roberts could have handled that by using a trusted confidant as a go between someone not identified solely with Roberts on the court.
Roberts is really not doing Sotomayor a favor.
She is already convicted in the public mind.
The procedures that are in place would either clear her( by finding OJ’s real killer), or by giving her a suitable punishment and thereby ending the matter.
As it stands, she is branded as untrustworthy forever.
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I’m highly confident that the leaker was not Roberts. Of everyone connected to the Court, he’s one of the least likely. It’s contrary to his demonstrated obsession about the standing and prestige of the Court.
Plus, he’s not that stupid and reckless. He knows there’s a real possibility of the leaker being identified — by the reporter at Politico to whom the leak was made if nothing else. In that event, the leaker is ruined.
Let’s think about “a woman’s right to choose…”. Yes, she can choose to abstain, she can choose to take oral contraceptives, she can choose to keep her legs closed, she can choose to have her partner use a condom….
Exactly. The actual choice comes long before any possible eventuality.
Sotomayor is a likely suspect because she is too simple-minded and frozen in time to grasp the enormity of it.
But my bet is John Roberts himself, to ingratiate him to the ultra select few at the peak of the Bilderberg conspiracy to ruin the world. Only that tiny handful of peeps would know it was he.
A person hasn’t been paying attention if by now they weren’t convinced beyond doubt that the U.S. DOJ, FBI, career U.S. State Department staff, the NSA, (did I mention the FBI?) and the CIA, etc., are corrupted, possibly beyond repair.
The leak is one thing, the Department of Justice response to the decision itself is another. AG Garland, in his official capacity, not only criticizes the Supreme Court decision but commits his agency to oppose it. Garland should be impeached.
Many avenues to explore here. First, I must note that cojones are generally not among the organs found in females, but Our Gracious Host’s use of the term is understandable. It is unfortunate, however, that it is thought to be a desirable trait for a woman to exhibit said cojones. A brave woman has always been admired throughout history, as Joan of Arc, Molly Pritchard, Margaret Thatcher and many others have proven. Yet, female bravery has always also been tempered by femininity. (Not “feminism,” which is totally unrelated and quite destructive to both sexes. It is “feminism” that gave rise to the claim that there is a “right” to abortion.) Moving on, I believe that if it were truly the desire of CJ Roberts or any other Justice to find the leaker, it would have already happened, with the simple expedient of a warrant (either search or arrest) issued on the reporter who took the leak and published it. None of the Justices wants to disclose what they (probably) already know, however, each for his or her own reasons. Roberts, for all his faults, has a difficult job. Can you imagine what it is like attempting to find intellectual common ground with “The Wise Latina” and now, KJ Brown, both of whom are nothing but affirmative action hires? At any rate, the problem with Roberts’ efforts to square circles, which he pretends is something called “gradualism” becomes evident when confronted with a sweeping, but erroneous prior decision, which is precisely what Doe/Roe was. It knocked over thousands of years of social and political consensus about abortion (i.e., that it was evil, wrong and mostly a criminal enterprise) in a single fell swoop. No other decision in The Court’s history, Dred Scott, Plessy and Brown included, effected so massive a change in the social fabric. It was not until the utterly wrongheaded and misguided Obergefell decision that The Court again tore the very fabric of society in favor of a small but very dedicated band of social outliers. (I agree with Justice Thomas that it was equally Constitutionally defective and await its similar demise.) Finally, I concur that not every societal issue is a nail that must be pounded down with a judicial hammer. As a lawyer of over forty years in practice, I can assure everyone that not every question is suitable for answer in a court of law. There are things that require working out among the concerned citizens, whether at the ballot box or simply by agreement–even if it means an agreement to disagree–what used to be called the social compact. When that begins to fail more times than it leads to an accord, the society itself is doomed. The question of our time is whether we have reached that point or not. I pray not, but am prepared to confront the alternative.
Well said, but I am afraid that many members of our society do not have the historical perspective that you have and that includes many members of your profession who one way or another control the political discussion in our great country.
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There is also the possibility that the primary leaker was not identified, or that the Justice or clerk who handled the printout that was leaked may have simply been careless, or can’t be proven otherwise. Back in my college days, I was once the recipient of a leak of a confidential personnel document, and after obtaining it I held it until the Fall trimester started and then I made good use of it (anonymously), which forced a very bad professor to resign. It was leaked to me by being left on the floor near a computer terminal during the summer session. I suspect that a member of the tenure review committee evaluating the bad prof left it there so I would find it, but there is no way to prove that. He may have simply been careless. Something similar could have happened at the Supreme Court. It could have been left on say, a lunch table, and some staffer found it and gave it to Politico.
“Roberts has always been obsessed with the status and prestige of the Court, which is not a bad thing….” Glenn, that appears to be the prevailing view, but I (a lawyer-litigator) respectfully disagree. For a simple, straightforward reason. The sole & only obligation of every single judge is to decide (or make rulings in) the case/ controversy before him or her completely impartially, based solely & exclusively upon the facts in evidence & the law. Period. A judge’s rulings or verdict should be based on absolutely nothing else. The reputation, status, or prestige of the court should play zero role in any judge’s decision or ruling in any case. How would you like to be a party in a case in which the judge’s ruling or verdict was influenced by his or her view of what was best for the court’s prestige? In fact, to allow external factors to affect a judge’s judgment in a case is a breach in his or her judicial oath.
I don’t disagree with you, Doug, as shown by the last sentence of my piece. Roberts’ concern about the status of the Court is admirable, but I question whether it should influence his rulings.
His preoccupation with optics and social sentiment just projects his anxiety that the high court is fragile. His concerns seem to take priority which is anathema to justice.
Your comment is correct, but unfortunately, as is amply demonstrated every day in the United States District Court for the District of Columbia, that is not the standard that is applied.
The disastrous possibillity is that the leak was calculated and the leaker, of whatever political stripe, wears a black robe. In current times this allows the execrable Joe Biden to pick another mental giant a la Sonia or Ketanji as a replacement. Perhaps the best choice IS for Roberts to remain mum and exact “punishment” of the perpetrator behind the scenes. If only one had confidence he possessed the “cojones” to do so.
If it’s one of the liberals you want, why not the one who was on his way out the door?
Roberts acts like he is compromised. His tortured logic on ObamaCare was the red flag. Since then his every action has simply reinforced what was true from the beginning. They have something on him.
As a matter of fact and law, the Constitution never mentions, alludes to, or implies a Constitutional right to abortion.
which has nothing, what so ever, to do with interpreting the constitution in light of state and federal low.
Regarding this wild notion that CJ Roberts is being blackmailed, let me add this:
If he were indeed being blackmailed, then this Dobbs case is one where he could have hidden — and would have been instructed to hide — his tracks with some misdirection by joining the majority, since the majority already had five Justices anyway. A smart blackmailer saves his ammo for instances where it can make a difference.
I understand why others might see Roberts differently. It’s human nature to conclude that someone we disagree with is corrupt or compromised or crooked.
But human nature is often in conflict with logic and rationality. I’m firmly convinced that Roberts is NOT corrupt or compromised or crooked. In fact, I think he’s squeaky clean to a fault — it’s that squeaky clean thing that makes him sometimes mistakenly put the interests of the Court over the interests of the litigants.
First, no one would say about slavery, “Let the people and their elected legislatures puzzle out this philosophical, moral and religious – but not legal or Constitutional – issue. That’s what the Founders intended for such issues.” While I’m grateful for the overturning of Roe, I think there needs to be a Constitutional Amendment that protects unborn human beings just as there was for slaves. If the life or death of unborn human beings can be decided by the states then why not the enslavement of blacks?
Secondly, I disagree that the Constitution does not speak to abortion. The Constitution says TWICE that no “person” shall be deprived of life without due process of law, which is why there used to be great effort by the abortion industry to redefine an unborn human being as something other than a person until they finally no longer needed to keep up the pretense. Of course, this is exactly what was done by SCOTUS in Dred Scott in regard to blacks and the Nazis in regard to Jews. We look back on those periods with horror at the inhumanity, which is how we will one day look back on convenience abortions which often dissected babies, tearing them apart limb by limb without anesthesia.
I also note that Planned Parenthood was started for the express purpose of exterminating the black race. Margaret Sanger, stands as one of the greatest criminals of the 20th century alongside Hitler, Mao, Stalin, Slave owners and the KKK, yet she’s still hailed as a great hero by the left. I highly recommend Dr. George Grants’ biography of Sanger called, “Killer Angel.” If you’re not already aware of her history, you’ll be appalled and wonder how, in this day and age, when we’re removing Confederate Monuments, she remains unstained by her outspoken white supremacy and desire for the genocide of African Americans and the other “less desirable,” human beings.
Abortion has always been a human rights issue, no different than slavery, except to the extent that there is a bodily autonomy issue intertwined with abortion, but imposing nine months of pregnancy does not trump the death penalty imposed on innocent human beings for convenience sake.
As far as Roberts, I’ve become increasingly convinced that Roberts is compromised. There’s a reason the public hasn’t been told who visited Epstein’s Island. There have been “lists” for a very long time. Hoover kept one, and in recent times, Hillary had hers. Oppose her, and you would be exposed, and if you had not actually done anything, she would make it up like she did about Trump, then her accomplices in the media would make it headline news without confirming it’s truthfulness, but I think have something real on Roberts. Somebody has pictures. He twisted himself into a pretzel for Obamacare and has since sided with the left more times than not. He can’t expose the leaker because he would be exposed, so this will go the way of Jeffery Epstein’s death. It will be forgotten by the majority of Americans who can’t tell you the three branches of government much less who’s on the Supreme Court.
I’m confused by your first paragraph. You seem to say that there should be a Consitutional Amendment to prohibit abortion, rather than letting the people and their legislatures figure it out. But the way a Constitutional Amendment happens is through the people and their legislatures.
Your second paragraph is seemingly at odds with your first. It argues that the Constitution already protects the unborn even without the Constitutional Amendment that you advocate in the first paragraph, because the unborn are “persons” within the meaning of the Constitution. That’s a plausible argument, but it presents more a biological and philosophical point than a legal one. In any event, it’s worth noting that, to my knowledge, no court anywhere, ever, has bought that argument.
Your last paragraph would be borderline defamatory but for it the fact that it’s so ridiculous that no reasonable person could possibly believe it. The notion that Chief Justice John Roberts secretly received, and accepted, an invitation to Lolita Island is literally comical. It’s SNL stuff.
You’ve made one important factual contention that is simply false, which I must correct. It’s false that Roberts has recently “sided with the left more times than not.” This past term, for example, there were 12 major political cases. Roberts sided AGAINST the left in all but two. Even in the abortion decision, Dobbs, he sided against the left in voting to uphold the Mississippi law. (It’s just that he concluded that the case could be decided for Mississippi without completely overruling Roe as the other five Justices did. That conclusion is indisputably correct as a matter of jurisprudence.) https://www.washingtonpost.com/politics/interactive/2022/significant-supreme-court-decisions-2022/
“This is a bad outcome only if you think that abortion is a moral wrong which, according to at least five unelected lawyers in black robes appointed for life, is barred sub silentio by the Constitution . . . .”
Am I reading this correctly — that the majority believe the Constitution bars abortion?
No, the majority says the Constitution doesn’t guarantee abortion, nor does it prohibit it. It’s a matter for the states to decide.
Yes, Roberts is a coward.
Yes, the leaker was most likely the “Wise Latina.” Now what?
Why does no one suspect Breyer, who knew he would be retiring, avoiding the “kompromat” issue, and whom Roberts would be powerless to punish now?
A good take on the affair. And which justice is obsessed with the media and the reputation of the Court? Well, none other than Roberts himself. I respectfully disagree that he is unlikely to be the leaker; on the contrary, he seems the most likely to me, given his belief that the knows what’s best for the Court’s reputation.
He split the difference on the issue in Dobbs, and my guess is he was trying to create enough of a storm that one of the two new squishable justices (Kavanaugh and Barrett) would join him in doing so, leaving Roe in place but effectively pared back. Pro-life states would all rush to pass 15-week legislation, and the Court could preen a bit about stare decisis and how far above politics it is.
BTW, your blog could use a less stylish but more readable font. Not quite so thin.
Anything is possible. This includes a court employee digging a printed copy out of the trash. An outside hacker. A boyfriend, girlfriend, spouse or bestie of one of the clerks could have been shown the draft and made a copy of it somehow, either photographic or digital. Could this person have been an intelligence agent or working for some new agency? Possible.
It could have been one of the justices acting on one of the suggested motives. Or out of some other motive.
Until we know, anything. But there is a hint here. The elite does not want the identity and motive of leaker known because it does not want the public to know the extent to which the common members of the elite regard their station as a personal playpen where they can do as they wish without accountability. If Hunter Biden, Ghislaine Maxwell and Jeffrey Epstein are possible, anything is possible.
“ … the liberal reporter at Politico who broke the story and published the draft opinion now has kompromat on her.“
Heh … you tipped your hand there Glenn. So it’s likely either Kagan or Sotomayor.
In the meantime, I don’t think this Dobbs decision is going to be the big turnout issue for the Dems this November. Everyone is getting crushed by inflation, high gas prices, no baby milk formula, etc.
Biden and his ilk seem to be actually incentivizing abortion by making it so hard and expensive to raise and feed a kid in America.
I do think SCOTUS should come back to this issue … aborting an unborn baby without due process. After several weeks an unborn baby already has a heartbeat, brain waves and facial features. How can it be anything other than an unborn human being, worthy of dignity and protection?
I wish that unborn babies had just a fraction of the due process rights that are afforded to the brutal psychopaths inhabiting America’s death rows.
Since the Biden Administration seems so fond of redefining words like “woman” and “recession,” then let’s just redefine “fetus” and “death row inmate.” Sauce for the goose is sauce for the gander, right?
Let’s redefine death row inmates as fetuses and abort them … ASAP.
Let’s also redefine fetuses as inmates so armies and armies of ACLU and appellate lawyers will defend them from being terminated.
Perhaps in this upside down world this is something that makes some sense.
I know it’s silly and unrealistic … but a guy can wish.
Mabuhay … from The Philippines!
Photocopy > envelope addressed to journalist > stamp > mailbox. Impossible to trace.
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