After a purported draft of the Supreme Court’s upcoming decision in Dobbs v. Jackson Women’s Health Organization — a decision that would overturn the long-standing precedent of Roe v. Wade and open the door for states to ban abortion outright — some outrage erupted.
Yes, there was plenty of anger at the Supreme Court’s conservative justices for essentially throwing out decades of judicial precedent. And while most of the anger came from liberals, there was some dismay expressed by Sen. Susan Collins, who lamented that the proposed decision “would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.” The Maine Republican had said numerous times, for each of the three conservatives she voted to confirm, that they would uphold Roe v. Wade.
Immediately after the draft was published, SCOTUSBlog, which covers the Supreme Court, called the leak — not the actual ruling it foreshadowed — “the gravest, most unforgivable sin” for the court.
And on Tuesday, as the Supreme Court confirmed that the draft was authentic but did not represent justices’ final positions on the matter, Republicans were focused on determining who it was that told Politico — and in, turn, the world — that the court would overturn Roe just a few weeks before actually issuing a decision.
Senate Minority Leader Mitch McConnell, the leading Republican — who did not allow a vote to confirm former President Barack Obama’s Supreme Court pick, Merrick Garland, and then ensured Amy Coney Barrett would be confirmed just one month after her nomination by former President Donald Trump — called the leak an “attack on the independence of the Supreme Court.” He blamed the “radical left” as the culprits, calling the leak an effort to “bully and intimidate federal judges and substitute mob rule for the rule of law.”
McConnell was echoed in his condemnation by Sen. John Kennedy, a Louisiana Republican, who said the leaker was a “misguided zealot.” Kennedy wanted the FBI to conduct an investigation, which, according to Democratic Sen. Sheldon Whitehouse of Rhode Island, would be a violation of the separation of powers.
House Republican leadership also weighed in, as Reps. Kevin McCarthy of California, Steve Scalise of Louisiana and Elise Stefanik of New York called the disclosure a “coordinated campaign to intimidate and obstruct the Justices of the United States Supreme Court, and its independence in our political system, from upholding the Constitution.”
But outside of Republican circles, there has been reason to believe that the leaker is not a liberal who is aghast at not only the loss of abortion rights, but also the Court’s insistence that other rulings — ones that grant the right to gay marriage, prevent anti-sodomy laws from being used against consenting adults, and prohibit states from outlawing birth control — could follow suit.
In fact, there’s a groundswell of opinion that the leak was designed to prevent justices from changing their mind in voting to strike down Roe.
One argument for the conservative self-leak theory came from former clerk Amy Kapczynski, who opined that the leak would distract from “how devastating the reversal of Roe will be to the credibility of the Court.” In a Twitter thread, she speculated that the leak was an effort to lock in this version — Justice Alito’s version — for all five conservative justices, who would have to vote that way or be seen as caving to political pressures.
“Far and away most likely impact of the leaked draft is that it locks in 5 votes for this opinion, essentially without edits. Who would want that? So: This is about as extreme an opinion as you can have overturning Roe,” she wrote as part of a series of tweets.
“Maybe Roberts says abortions ok in some time frame, preserving exceptions for the life of the woman, etc. And Kavanaugh is tempted by it – maybe not enough to vote for it, but enough to demand some changes to the Alito opinion,” she added.
Less than a week before the draft was leaked, the Wall Street Journal’s editorial board noted that Roberts “may be trying to turn another Justice” away from Alito’s opinion.
“If [Roberts] pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision,” the editorial board wrote. “If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.” Roberts went against conservatives in 2012, voting against striking down the Affordable Care Act — something that Bloomberg News’ Supreme Court editor noted at the time was a “worry” of conservative media at the time.
Democrats have focused less on the leak and more on the prospective loss of abortion rights in the at least 13 states with “trigger laws” that could ban the procedure almost immediately if Roe v. Wade were overturned, as well as several other states likely to ban abortion.
On Tuesday, Roberts ordered the marshal of the court to investigate the leak, saying in a statement: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.”
There currently is no law cited by legal scholars that would protect anyone who leaked a Supreme Court document.