Information or Disinformation? CNN Report On SCOTUS Abortion Leak Seems Designed To Point Finger At Conservative Justices

Information or Disinformation? CNN Report On SCOTUS Abortion Leak Seems Designed To Point Finger At Conservative Justices

So remember the leak of the draft Alito majority opinion overturning Roe v. Wade in the Mississippi abortion case (Dobbs), that looked a lot like the eventual official majority opinion? That leak in early May 2022 led to several weeks of protests and attacks on the conservative Justices, including an assassination attempt on Brett Kavanaugh that has been memory-holed by the media and Democrats.

The standard speculation was that it was a law clerk for a liberal Justice. But there were alternatives spread, such as that it was an attempt by one of the conservative Justices to keep the others in line by alerting the public that there already was a 5-vote majority. That never made sense to me, because none of the Alito-5 was a surprise, and in so leaking, the Justices would be exposed to weeks of threats.

Despite Chief Justice John Robert’s vow to investigate the leak, there has been no public information as to the status of the investigation or who was the leaker.

Today we have a report from CNN that might be true, or it might be disinformation designed to point the finger at one of the conservative Justices and throw the public off real trail. A red herring, as they say.

But let’s take it for what it’s worth, CNN reports, The inside story of how John Roberts failed to save abortion rights:

Chief Justice John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May’s unprecedented leak of a draft opinion reversing Roe v. Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN.

It appears unlikely that Roberts’ best prospect — Justice Brett Kavanaugh — was ever close to switching his earlier vote, despite Roberts’ attempts that continued through the final weeks of the session….

Multiple sources told CNN that Roberts’ overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority.

Roberts’ persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play. He can usually work in private, seeking and offering concessions, without anyone beyond the court knowing how he or other individual justices have voted or what they may be writing.

Kavanaugh had indicated during December oral arguments that he wanted to overturn Roe and CNN learned that he voted that way in a private justices’ conference session soon afterward.

I don’t think this CNN blockbuster actually reveals much that we didn’t already know or assume. The 5 conservatives voted in conference for the Alito draft, and CJ Roberts attempted to get a watered down result, which we all assumed would happen.

The report did reveal that permanent court employees turned over their electronic devices for inspection, making it less likely a permanent employee was the perp:

As CNN earlier reported, the court’s marshal, Gail Curley, asked law clerks who serve the justices for one-year terms to sign affidavits related to the leak and to turn over cell phone data. She also obtained electronic devices, CNN recently learned, from some permanent employees who work closely with the justices.

This bombshell has led law professor and blogger Paul Campos to declare, Sam Alito leaked his own Dobbs draft:

I’m calling my shot on this….

I always thought the theory that a clerk of one of the liberal justice’s leaked the draft was absurd: I’m intimately familiar, via professional association, with the ethnography of SCOTUS clerks, and they’re not that kind of people. This generalization is even more unimpeachable in regard to the clerks for the right wing justices, who have gotten into those positions through strategic social gymnastics that would embarrass a courtier in the court of Louis XIV.

So yeah, no.

Alito himself leaked the draft, to lock in Kavanaugh. It’s unlikely it was necessary to do that (Kavanaugh’s vote was locked in as soon as he was totally falsely accused of sexual assault by those liberal women) but I’m betting Sammy the Papal Bull thought, “why take a chance?”

A more neutral view was taken by David Lat:

It makes sense to me that Justice Kavanaugh’s vote was never really in play. When the final Dobbs opinion came down, it was strikingly similar to Justice Samuel Alito’s initial draft, with hardly any changes except for the addition of responses to the joint dissent of the three liberals and the concurrence of Chief Justice Roberts. In other words, Justice Alito didn’t have to make any substantive concessions or stylistic tweaks to keep the vote of Justice Kavanaugh (who was instead content to make his conciliatory comments in a concurrence). This suggests to me that within the Court, the ultimate outcome of Dobbs was never seriously in doubt, and it confirms my earlier view that the leaker wasn’t trying to affect the vote through leaking.

So I adhere to my original theory about the SCOTUS leaker (hereinafter “The Leaker”). First, The Leaker was a law clerk, not a justice and not a permanent staffer. Second, The Leaker was—in the words of the AP article, summarizing the dueling theories—“someone who was so upset by the prospect of overturning Roe that informing the public at the earliest possible moment was of paramount importance.”

I’m still voting lefty-law clerk. Until proven otherwise.

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