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The SCOTUS Abortion Leak Backfired

The SCOTUS Abortion Leak Backfired

The shock of the ruling doesn’t seem to be there. Because it wasn’t a surprise.

Now that the Opinion overruling Roe v. Wade is out, the reaction while furious, seems like resignation. That’s not to say someone else won’t try to physically attack Justices or otherwise commit violence. It’s also not to say that Democrats won’t try to make it into an electoral issue, though I don’t think that will work (people angered at the opinion likely vote Democrat anyway).

But the shock of the ruling doesn’t seem to be there. Because it wasn’t a surprise. The leak took place on May 2. There have been almost eight weeks for it to percolate and for emotions to ripen. Yet those emotions, including the attempted assassination of Justice Brett Kavanaugh and attacks on pro-life groups, have created a backlash, with even the White House finally coming out against more violence.

Of course, the leak also didn’t change the result.

Whether the leaker ever is identified publicly remains to be seen. But the leak backfired by any objective measure.


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henrybowman | June 24, 2022 at 2:54 pm

The tactic is generally called “flagpoling it” (“running it up the flagpole”).

Like when the Pentagon’s “Total Information Awareness” program was “leaked,” to much consternation among patriots and privacy activists. After the news was a few months old and the furor had abated, the committee was disbanded (“ooh, we won!”), but its procedures and software were adopted by federal agencies quietly, under other names, if named at all.

Same with “Real ID.”

So it’s only fair the other side got to do it this time.

    Temujin in reply to henrybowman. | June 27, 2022 at 4:35 pm

    We don’t know whether it totally backfired. It may have affected the strength of the concurring opinion of Chief Judas Roberts.

I agree, Professor.

I don’t see this as a powder keg like George Floyd. The anger has had almost 2 months to run its course, plus by now anyone who has followed any of the news knows that this decision did not make abortion illegal. It just made it a state issue. And almost all of the blue states will still allow abortions. So what is there to riot about? Hope I’m not wrong.

    jpwcpa in reply to JR. | June 24, 2022 at 4:01 pm

    When lefties are involved, riots can occur whether there is anything to riot about or not.

    Neo in reply to JR. | June 27, 2022 at 9:15 am

    It’s summer time. Colleges and Universities are out.
    You know. It’s time to riot.

    The downside where and with the 6-Jan Committee is that they sprung the “trap” too early. By midterm election day, most of this will be ancient, but those gas prices will still be high.

    M Poppins in reply to JR. | June 27, 2022 at 12:00 pm

    of course there’s something to riot about. The psychotic Left can’t stand anything short of total submission to its demands.

UnCivilServant | June 24, 2022 at 2:58 pm

One wonders how much the attempted intimidation of the justices hardened other opinions besides Dobbs.

Ann in L.A. | June 24, 2022 at 3:13 pm

I’m not a lawyer, but I took the time to read Roberts’ dissent, I mean concurrence. It reads like a dissent. He doesn’t stand with the majority, spends his entire rebuttal saying he doesn’t stand with the majority, but at the end of his text, he says he concurs.

I’m thinking he was among the dissenters in a 5-4 decision, and would have written his own dissent, but the leak pissed him off. To show support for the workings of the court, and to protest the attempt by the leaker to influence the justices, I think he changed his vote to a nominal concurrence and made it 6-3.

    Peabody in reply to Ann in L.A.. | June 24, 2022 at 3:22 pm

    The leak was like sticking a pin in the liberal hot air balloon allowing a little air to escape ahead of time. And so when the ruling was issued it didn’t have the shock and awe effect it othewise might have.

      artichoke in reply to Peabody. | June 24, 2022 at 4:19 pm

      The shock and awe would be the same. I think the leaker hoped for big shock and awe, enough to get the decision changed. It didn’t happen. If they had kept it secret until the release, any shock and awe would have been wasted in their view. So they tried this, but it didn’t work, fortunately.

    Peabody in reply to Ann in L.A.. | June 24, 2022 at 3:23 pm

    That’s why I don’t think Roberts was the leaker.

    Dathurtz in reply to Ann in L.A.. | June 24, 2022 at 3:29 pm

    I can see him changing his vote because he hopes a 6-3 will be less controversial tham a 5-4.

    artichoke in reply to Ann in L.A.. | June 24, 2022 at 4:16 pm

    I don’t think the leak pissed him off. Maybe he or one of his allies on the left (he is a closet leftist) is the leaker. But the leak didn’t promote the over-the-top response they wanted. Maybe they wanted violence to succeed. At any rate it may have been a last ditch attempt to move the 5 off that decision. Roberts probably controls the scheduling, so he gave max time for any change to occur. Failed.

    And so he joins the majority in saying the timeline shouldn’t apply in Mississippi because it’s too long. He gets to pretend he’s a conservative, which he pretends to be only when it doesn’t count. 5-4 or a nominal 6-3, it doesn’t matter, and the really strong part of the decision only passed 5-4.

    neils in reply to Ann in L.A.. | June 27, 2022 at 9:09 am

    No need for Robert’s to change his position. He believed all along that the Court should do only what was necessary to resolve the actual case before it. He believed that the viability and undue burden standards in Roe and Casey were unworkable and not required by the constitution, and could be separated from the core holdings of those cases that the fourteenth amendment protected a right to an abortion in early pregnancy, so he concurred in the JUDGEMENT to uphold the Mississippi statute before the Court, explaining that it was unnecessary and therefore wrong to Overrule Roe and Casey at this time, leaving consideration of that question for another day. He therefore did not join the OPINION completely overruling Roe and Casey, nor did he join dissenters who would have struck down the Mississippi statute.

    The judgement of a court is what it does/orders. The opinion is the explanation of its reasoning for doing so. Sometimes, as here, different members of a court come to the same judgement for different reasons.

      BD1957 in reply to neils. | June 27, 2022 at 9:07 pm

      The problem with that approach is, it leaves the Supreme Court “in charge” of abortion policy . . . with even LESS ‘mooring’ in the Constitution.

      Roberts approach amounts to the Court perpetually “Playing Caesar” . . . “Tell us your law, we’ll tell you if we like it.”

      We revolted against the British because we didn’t want a King. Why would we overthrow the one, only to “appoint” the Supreme Court as “King Collective”?

Steven Brizel | June 24, 2022 at 3:14 pm

The leak may have backfired but the leaker (s) should be identified, and terminated before the leakers tells their story to the legacy media

I’ll be shocked if the leaker is ever identified.

    Olinser in reply to Paddy M. | June 24, 2022 at 6:33 pm

    Trust, me, they’ve already been identified.

    They’re never going to RELEASE the identity.

    Why do you think Roberts has been so quiet about it? He knows goddamn well exactly who it is, and he’s afraid of the consequences for it getting out.

      tbonesays in reply to Olinser. | June 24, 2022 at 7:22 pm

      Because the single leaker was acting with cooperation from someone more senior? Someone who has worked at SCOTUS long enough to know things?

    drsamherman in reply to Paddy M. | June 26, 2022 at 6:30 pm

    Me too. I have an inkling that it was either the wise Latrina’s clerk (I’m Latino and I’m not offended calling her that!), Breyer (nothing to lose), or Roberts (pressure to bend the decision his way). Any of the other justices on the outside, but their young butthead ideological clerks—who knows….

I live in LA County where everything is celebrated with rioting and looting. Lakers win championship? Rodney King found guilty? Roe v. Wade overturned? Everyone celebrates in the streets. It’s going to be a wild weekend.

NavyMustang | June 24, 2022 at 4:31 pm

I’m proud of the Justices for not knuckling under to the mob, but I sure would not want to be the neighbor of any of the conservative Justices for the near term!

    rochf in reply to NavyMustang. | June 24, 2022 at 4:35 pm

    Kavanaugh already has a jerk for a neighbor–she served refresements to the protesters and joined in.

      artichoke in reply to rochf. | June 24, 2022 at 4:58 pm

      That is really incredible. The whole DC area is hostile territory. For such a ruling to survive and emerge from there is a miracle.

        Nanoushka in reply to artichoke. | June 24, 2022 at 6:45 pm

        Today is the feast of the Nativity of St John the Baptist, who leapt in the womb when The Blessed Virgin Mary came to visit his parents after the Angel Gabriel told her that her cousin was with child. He was then absolved of Original Sin. It makes sense to me that this ruling be released on his birthday.

        He lost his life because he was an advocate for marriage as he objected to Herod’s marriage to the divorced Herodias and when Salome danced Herod told her he’d grant her any wish. She consulted with her mother who suggested John the Baptist’s head on a platter.

        May have over explained but there are many who don’t know.

          kyrrat in reply to Nanoushka. | June 25, 2022 at 1:13 am

          The 24th is Feast of the Sacred Heart. The 25th is St. John the Baptist. It’s a wierd year in the calender because Sacred Heart fell on the traditional day of the feat of St. John the Baptist. Saturday is the feast of St. John the Baptist, and normally this feast falls on June 24; however due to the feast of the Sacred Heart occurring on that day this year, the feast of St. John is transferred to June 25. This is confirmed via the FSSP liturgical calendar.

          The Feast of the Sacred Heart of Jesus A New ray of light shines today in the heaven of holy Church, and its light brings warmth. The divine Master given to us by our Redeemer, that is, the Paraclete Spirit, who has come down into this world, continues his teachings to us, in the sacred heart.

          Neither here nor there really. Both are important.

          M Poppins in reply to Nanoushka. | June 27, 2022 at 12:05 pm

          I commented about exactly this on facebook – it was the very first thing that I noticed, and the first thing that I thought of, the infant leaping in the womb. I was very surprised that no other Catholics or Christians I knew said anything about it.

IMO, they have known who the leaker was since day one, day two at the latest. They haven’t released the name for a number of reasons, good, bad or indifferent. For instance, if it was a Justice, it was almost certainly one of the Leftists. Releasing the name could be cause for impeachment–which would probably fail. I think one of the Conservatives is unlikely–since they would know that their lives were going to be made miserable–and an impeachment against them would likely succeed.
A staff member? Probably end of legal career, but immediate lionization by the MSM. Book deals, etc. If not disbarred–move to big law firm. Don’t want to encourage that stuff. I will leave it to the lawyers on this board as to whether disbarment would result.
My guess is that somehow they never quite get around to releasing the culprit’s name.

PrincetonAl | June 24, 2022 at 4:59 pm

The leak backfired, conservatives notched a win.

Winning a battle feels good but it’s just the start.

Politics is downstream from culture. The win is not robust without developing a respect for life in the culture.

Because of the larger issues under Biden, it won’t carry the power it would have otherwise to mobilize progressives which is good.

But don’t be fooled, they will fight this and fight dirty for years to come.

Like rust, progressives never sleep.

Some legislation is being prepared to make leaks criminal. There is a good chance that one or more of the justices leaked the decision. In any case i would think it was an impeachable offense.

SeymourButz | June 24, 2022 at 6:23 pm

All I know is if a leak occurred in the White House or Congress there would be hell to pay. But they don’t care about the judiciary. If they could they’d replace them all every election cycle. They’re tools to them, not a legitimate, respectable branch of government.

How can we remind them?

I agree with the Professor 100%. I did my rare logging onto FB and 1% of my friends care, and they are all political junkies. THe public is more bored of this than the Jan 6th-quisition.

    Peabody in reply to tbonesays. | June 24, 2022 at 8:01 pm

    That’s good news.

    M Poppins in reply to tbonesays. | June 27, 2022 at 12:07 pm

    I had the opposite experience on facebook – everyone I know cares, very deeply.

      tbonesays in reply to M Poppins. | June 27, 2022 at 1:46 pm

      I can add a couple of crowded public spaces this weekend with zero people who seemed aware of the decision. The only mention was from the priest at church who thanked the pro life movement and said ‘now we are going to change gears’ meaning the sermon was not even going to be tied in to the news.

I think the leaker was Sotomayor herself, and that’s why we’ll never find out officially it was.

LukeHandCool | June 24, 2022 at 10:48 pm

The most important element of a ploy to excite and rally your supporters and sometimes supporters into a political frenzy is surprise.

The shocking instant of surprise has been dragged out over eight weeks, completely blunting its catalyzing force.

In the meantime the vast majority of voters, who struggle intellectually back and forth between the two forty-yard lines on the abortion issue, become reacquainted with the issue and tune out obviously partisan tactics to cloud their judgement.

Surprise and susceptibility to emotional appeals largely drained of effect over eight weeks of time makes the public more or less shrug their shoulders and take it in stride.

It doesn’t debut at number one on the charts as expected.

It’s debut is way down the charts below inflation, the price of gas, the loss of trust in our institutions, the woke attack on our culture, and our diminished stature in international affairs.


“… the attempted assassination of Justice Brett Kavanaugh”.

No, the miscreant never got the chance to attempt anything as he was arrested, thankfully, before making an attempt.

    lichau in reply to diver64. | June 25, 2022 at 12:53 pm

    Didn’t he call 911 himself? Pretty thin gruel for “attempted assassination”.

    rebelgirl in reply to diver64. | June 27, 2022 at 8:16 am

    How is it that showing up at the next door neighbors’ home, coming from California loaded for bear, NOT attempted assassination? I would think that is the perfect definition of ‘attempt’….

    Philip in reply to diver64. | June 27, 2022 at 10:31 am

    His actions [2,640-mile/40-hour drive equipped with deadly weapons] line up to be an assassination attempt/conspiracy/politically-motivated plan to murder an innocent opponent… all the way up to when the attempt ceased.

Roberts leaked it to give himself more time to convince one of the others to change their mind. He may not have done it personally but he got it done. Very much like the President that appointed him. Does not like dealing with difficult issues.

    retiredcantbefired in reply to swampdave. | June 25, 2022 at 4:09 pm

    My thought as well. Roberts wanted to see whether any other Justice could be intimidated into signing onto his opinion instead of Alito’s. Then, at the expense of a little strategic illogic, Roe v. Wade wouldn’t have been tossed.

Celebrate the win and smell the roses, but much work remains to be done. The battle shifts to the states and politicians will be casting votes on abortion that will have real significance.

As for our leaker, the usual suspects are the law clerks who will be changing out in the near future. When they do, the leaker will breathe more easily.

    Philip in reply to Old Soldier. | June 27, 2022 at 10:25 am

    So true, and the pro-abortion zealots will have at their bidding nearly every news outlet to spread their hatred and lies.

Professor, I will take SCOTUS Leaker for $1,000, please.

Who is John Roberts?

I think it was Roberts. His outrage did not serm convincing. I wonder if clerks even have access to draft opinions that are so far along to publication. It woukd be interesting to find out from a former clerk exactly what access they have and the protocols. Computers need usernames and passwords. The leak was from a printed copy. I have doubts that clerks have that kind of access. My bet is Roberts over the dissenters. I now believe the rumor that Roberts was heard yellibf at the “junior” clerks not to press the election challenge. The best shot of a challenge being heard was the appeal from the Commonwealth Court of Pennsylvania, where the judge had serious enough concerns to write a decision reflecting them. My recollection is that the PA case us the only one with that kind of gravitas. Roberts does not care about the safety of the other justices ir he would have been screaming for further investigative action of the leaker and more security for his fellow justices. He does not have the power but he has the platform.

Oh my gosh… the typos from using my phone…

Look at it this way.
They had 8 weeks to draft and submit a bill setting a nationwide protection for abortion to 12-15 weeks, plus exceptions for rape, incest, and health of the mother. All policies that are widely accepted as generally necessary if distasteful by a broad majority of the public. If they can get 14 republicans to vote for gun control, they can get 10 to vote for a first trimester abortion floor.

They didn’t.
They would rather have abortion as a wedge issue, as they have enjoyed for the past 40+ years, than to actually do something, which is why this all happened in the first place.

The result appears to be similar to the old saying that they [the pro-abortion zealots] were like frogs in a pot of water slowly but gradually coming to a boil.
Ripping their band aid off the week of May 2 would have possibly resulted in the powder keg incidents that they were hoping for.
This backfire looks to be less powder-keggish. Fingers are crossed. Knocking on wood.
Y’all have a terrific week!

Y’all have a terrific week!

After reading his “dissent/concur” I strongly suspect that the “leaker” was Roberts. He voted to overturn in order to prevent his exposure.

    mcrognale in reply to mcrognale. | June 27, 2022 at 10:44 am

    Forgot to add, I suspect that the “search for the leaker” will quietly disappear if it hasn’t already.

I don’t think the leaker was a justice, they have to work with the other justices for years to come. I also found out the interns usually are only there for one term, so if the leaker isn’t outed, they will leave and their position won’t be in jeopardy. I’m guessing there will be laws in place to make sure there are criminal penalties in place if it happens again.

As for the leak, there was time for compromises to take place and we know the Chief Justice was working on that. What the leak did was make compromise impossible, since it would have sent the message that intimidation works. Also, the leak exposed the shallowness of the Democrats who, in spite of the laws in place, allowed the intimidation to go on. The pity is they won’t put the same effort into legislating.