Dobbs was probably leaked by Sotomayor

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.

Who or what is Chief Justice John Roberts protecting?

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 Supreme Court will probably uphold the Mississippi law limiting abortion after 15 weeks

An unborn fetus at 16 weeks

The Supreme Court this week heard oral argument on the Mississippi law that limits abortion after 15 weeks from conception.

As someone who practiced law at the Supreme Court, I listened to the arguments. I think they’ll uphold the Mississippi law. I have a few observations.

Keep in mind that oral argument at the Supreme Court is typically more theater than jurisprudence. The Justices usually already have their minds made up from reading the briefs. But it’s worthwhile theater because it connects the public to the judicial process. Also, it gives some insight into the likely decision which won’t come till next Spring.

My first observation is that much of the public is confused about what the Court is deciding and what it is not. Blame the media for that. Clicks are generated and fires are stoked not by the media presenting cases, but by presenting parades of horrible.

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