At some point we will know who the leaker was of Justice Alito’s draft Opinion overruling Roe v. Wade. That Opinion, according to Politico, represents a court majority of five Justices which continues until recently.
The immediate and most obvious speculation (including by me) was that the leak was by a liberal/leftist, likely a law clerk, trying to create a firestorm of protest that would pressure one of those five Justices to wobble, much like Chief Justice John Roberts reportedly switched his vote on Obamacare in 2012. That explanation makes sense on several levels, including how protests were ready to go from the moment the Politico story published. Democrat politicians were ready to go also, making overheated threats and centering the 2022 election on the issue.
So at every level, it’s logical and obvious that the leak was by a lefty law clerk or other staffer at the Court in an attempt to prevent the Alito draft from becoming the issued majority Opinion of the court. (I’m discounting that a Justice him/herself was involved.)
Another view that has been proposed from the left, is that this was a leak by a righty law clerk, maybe even a Justice, in order to prevent one of the alleged five Justices backing Alito’s opinion from breaking loose. That makes little sense, since it presumes a conservative Justice or clerk would want to create a situation in which conservative Justices predictably would be targeted (as they are now). Though since we’re all speculating, it can’t be ruled out.
But the more I think about it, I’m wondering if everyone is being misdirected by the Politico reporting from the leaker that there is a majority still to overrule Roe. What if that’s not the case, what if there is a majority to, ahem, split the baby, don’t overturn Roe but find that Mississippi’s 15 week viability standard was valid, perhaps because of changes in the medical field since Roe. That is what I viewed at the time of the argument as the most likely outcome:
My “hot” prediction? The Court 6-vote majority, in an opinion by Roberts, upholds the Mississippi law, but finds it need not reach the issue of whether Roe v. Wade should be overturned. There will be at least three, possibly four, Justices with concurring opinions that they would overturn Roe v. Wade as wrongly decided.Roberts will push hard to gain consensus not to overturn Roe v. Wade explicitly, preferring in the interest of the Court to dismember it limb by limb.
If that is where the majority is, not the Alito approach, then leaking makes even more sense for a lefty activist in the courthouse. If Roe survives, there are no protests, there are no Democrat talking points, and there is no help for the midterms. So an activist could leak using a false narrative that Alito represents the majority, can generate the protests and the energy in the base, can create an issue for the midterms, and at the end of the day, Roe survives, which can be spun as a victory for the protesters, proving the mob was able to intimidate the Justices.
Is this what happened? We’ll likely eventually find out, but for me, it’s a viable alternative.
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