Supreme Court leak becomes new top political mystery

Opposing theories about the identity and motivations of whoever leaked the Supreme Court’s draft majority opinion that would overturn Roe v. Wade are swirling nearly a week after it was published.

The question of who benefits the most from piercing the institution’s legendary veil of secrecy has become a major part of the outcry following the revelation that the conservative majority appears poised to strike down a constitutional right that has been in place for half a century.

Politico did not reveal any information about how it obtained the draft ruling when it reported Monday night that four other conservative justices have sided with Justice Samuel Alito to overturn the precedent. Nothing in the draft opinion or the reported positions of the justices is final until the court issues a ruling.

The idea that seems to have gained the most widespread traction is that the draft was leaked by someone opposed to the court overturning Roe — perhaps a clerk for one of the liberal justices — who wanted to galvanize the public by preempting the likely release of the decision in June.

But an alternative and equally plausible proposition some court watchers have offered supposes an anti-abortion figure with access to the draft opinion leaked it in order to dissuade any of the conservative justices from switching sides or watering down the language involved before the court issues its ruling. 

Kel McClanahan, an adjunct law professor at George Washington University and an attorney specializing in whistleblower law, says that the two dominant competing theories are premised on the belief that a liberal in the court would leak the document out of an optimistic hope that it would mobilize voters or that a conservative would do it to try to lock in the draft as the inevitable, final outcome in the case.

“A Democrat would do this to try and galvanize the public to go out and vote democratic and to enshrine Roe in statute,” McClanahan said. “A conservative would do this not for any public effect — they would do it because they were afraid that the final tally was not going to be five to four.” 

“And so the question is, is it more likely that it was a crafty Jedi master Republican or a wide-eyed liberal optimist? Both are believable,” he added.

Commentators on social media and news outlets have also offered a dizzying array of other possibilities about the source of the leak and the individual’s motivations. The speculation ranges from incoherent conspiracy theories to plausible accounts premised on the political goals of rational figures in the court’s orbit.

Some have pointed to a column published by The Wall Street Journal’s editorial board the week before the leak that argued for overturning Roe and speculated without explanation that Alito would be assigned to write the majority opinion. The editorial also said Justices Brett Kavanaugh and Amy Coney Barrett could be vulnerable to an attempt by Roberts to form a middle ground that would not completely overturn Roe.

Tom Goldstein, a lawyer who has argued dozens of cases before the Supreme Court and serves as the publisher of the widely read SCOTUSblog, wrote in a post on Thursday that he believes the Journal was tipped off about the current state of the justices’ deliberations and that the Politico leak came as a sort of reprisal.

“My guess is that someone on the left felt somewhat justified in releasing the opinion in response,” Goldstein wrote. “Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett were considering. That leak was a historically unprecedented violation of the deepest and most solemn trust among the justices and the court’s staff. It wounded the institution.”

But at this point virtually nothing is known about the leaker’s identity, so the theories put forth by conspiracists or constitutional scholars are merely speculative.

Chief Justice John Roberts said last week that he has directed the court’s marshal to investigate the leak and vowed that the unauthorized disclosure will not succeed in undermining the justices’ operations.

“Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court,” Roberts said in a statement. “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The mystery might not be resolved for years, if ever, despite the internal probe, the intense political scrutiny and nationwide curiosity.

Still, the question and the rampant speculation has legal and political salience as the country waits to see if the Supreme Court will move forward with striking down the landmark ruling.

Republican leaders have responded by condemning the leak and calling for a full investigation and even criminal charges, a push that appears designed to make the disclosure itself, and not the substance of the draft, the focus.

The conservative response takes for granted that the leak came from the liberal wing of the court.

“Last night’s stunning breach was an attack on the independence of the Supreme Court,” Senate Minority Leader Mitch McConnell (R-Ky.) said in a statement last week. “By every indication, this was yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”

But Logan Strother, a political science professor at Purdue University who studies public perception of the Supreme Court, says the fact that the draft opinion was leaked will likely have little impact on the institution’s legitimacy compared to the effect the substance of the draft will have if it becomes law.

“I think people are going to tell themselves stories about where it comes from that helps them feel good about their team,” he said.

Strother co-authored a forthcoming study that found that leaks do not change public perception of the Supreme Court at all, though there has never been one of this size. He has found that opinions about the court are largely based on whether people agree with its rulings.

“People tend to make policy-based judgments about the court,” he said. “They like the court when it issues decisions they like, they don’t like the court when it issues decisions they don’t like.” 

“My expectation would be that this decision will harm the court’s legitimacy” because of the popular support for upholding Roe, Strother added.

But for those inside the court, McClanahan says there will likely be a more tangible backlash to the leak as a result of the intense scrutiny from the chief justice and political leaders. And the competing theories about the leaker combined with the lack of clues will leave everyone vulnerable to an invasion of privacy and perhaps even legal jeopardy.

“It’s going to be a complete free-for-all,” he said. “I will be truly shocked if no Supreme Court person gets punished for something. And I will be equally shocked if no Supreme Court person is punished for something completely unrelated to the investigation.”

“If you work for the Supreme Court, talk to a lawyer whether you’re a whistleblower or not,” McClanahan advised. “That’s the person who’s going to be able to help you navigate the storm that you’re about to weather.”