The Supreme Court decision last year in Dobbs v. Jackson overruled Roe v. Wade, their 1973 decision that purported to find an abortion right in a U.S. Constitution that never mentions or alludes to it. Abortion is now rightly governed by the people’s elected legislators, and, sadly, to some extent by unelected bureaucrats, but, in any event, not by judges.
The Dobbs decision was leaked a couple of months in advance of its issuance. The effect of the leak was an outcry from abortion proponents, illegal protests at the homes of the conservative Justices, and an attempted assassination of one. The leak was unprecedented in over two centuries of Supreme Court jurisprudence.
Chief Justice Roberts turned the matter over to the Court’s marshal, a person not skilled in criminal law investigation. Apparently unaided or little-aided by the unlimited resources of federal law enforcement, she concluded that there was no “preponderance of evidence” to name the leaker.
In other words, she has her suspicions but did not succeed in confirming them. As I wrote some months ago, I think Roberts didn’t really want her to succeed, because he felt that the political turmoil from identifying the leaker would be yet another blow to the Court.
The author of the Dobbs decision, Justice Alito, recently spoke at the George Mason University law school, a place called “Scalia Law School” after the late, great Justice Antonin Scalia. Or rather, I should say he virtually spoke. His speech was by Zoom after the school decided they could not guarantee his safety. These days, he and the other conservative Justices need 24/7 armed guards and must travel in armored cars.
Alito offered his view on the identity of the leaker and the effect of the leak. It’s detailed in a piece by James Taranto, the excellent Features Editor of the Wall Street Journal (behind a paywall HERE).
Alito speculates that the leaker intended the effect that the leak produced. That speculation seems sound. It’s hard to believe that the leaker thought the effect would be anything different. The purpose was obviously to intimidate the conservative justices into changing their minds.
Perhaps in a case of psychological projection, the leaker underestimated the courage and resolve of the conservative Justices.
Alito dismisses the complicated theory that the leak was actually by a conservative Justice worried that some of the other conservatives were wavering in their votes. He notes that a conservative leaker would be physically endangering not just the other conservatives, but also himself.
I would also note that the leaked draft proved to be nearly identical to the final opinion. It’s not likely that Alito would have gone to that much effort in drafting a final, polished opinion if there were any doubt about gathering the necessary votes for it. And when the opinion was issued, it was unequivocally joined by five conservatives, none of whom expressed the slightest doubt about the holding. (Chief Justice Roberts concurred in the judgment upholding the Mississippi law at issue, but, typical of his compromising ways, said his preference would be not to outright overrule Roe).
Let’s get to the bombshell of Alito’s recent comments: “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody.”
Yikes. Let’s consider this.
Alito says it was not a conservative Justice, so that leaves only the three liberals, Justices Breyer, Kagan and Sotomayor, and their law clerks. (Justice Jackson had been nominated to replace the retiring Breyer but was not yet confirmed or on the Court.)
I rule out the law clerks, for several reasons. One, a law clerk would be jeopardizing a lucrative and powerful career as a lawyer, a career he’d worked toward for many years. The kind of people who graduate high in their law school class at Harvard and Yale desire lucre and power. People without that desire don’t get there.
Two, Alito would be too unacquainted with those law clerks to have suspicions about particular ones. They would be people he said hi to in the elevator.
That leaves the three liberal Justices. Before considering which it was, note that Alito’s seemingly cautious comment is, in the context of the cloistered decorum of the Supreme Court, like a loud fart in a quiet church. Alito’s comment was a shot across the liberals’ bow.
Viewed more sinisterly, it was a subtle but strong announcement that he has kompromat on them.
As for which of the three it was, I doubt it was either of the first two. Breyer and Kagan are just not that type. I disagree with most of their political positions over the years, but in my judgment they are not cut from criminal cloth.
So that leaves Justice Sotomayor. Self-described in her 2009 confirmation hearing as a “wise Latina” (this was before the left invented and imposed on them the insulting “latinx” moniker) she has been anything but. She snarks acerbically but witlessly at the conservatives in her opinions and even in oral argument as her fellow Justices sit just feet away from her at the long Justices’ bench.
I suspected Sotomayor at the outset and wrote a piece about my suspicions. I now think more than ever it’s Sotomayor, I think Alito thinks so, and I think history will say so.
Now I have a prediction. Sotomayor, a diabetic who is not in great health, will retire before a Republican president and senate are elected in 2024. Alito at the relatively young age of 73 will soldier on, fighting the good fight. I hope to read his memoirs where he says what he thinks about this, but not for a very long time.
Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.
“High Attitude – How Woke Liberals Ruined Aspen” is now published and selling well. You can find it at Amazon or Barnes and Noble.