On Monday night, as word of the draft abortion opinion washed across the country like a tsunami, CNN and MSNBC focused their coverage on the ruling itself, while Fox dedicated its coverage almost solely to the fact that the opinion had been leaked at all. Both are critically important topics. One impacts people’s lives from here into the foreseeable future, and one impacts the court’s legitimacy from here into the foreseeable future. It is rather obvious why Fox stayed away from the substantive coverage. This is a massive political problem for the Republican party.
But the leak is a huge problem.
This simply doesn’t happen. Never. Ever. At least not in this attorney’s experience, nor in his education, has there ever been a breach of trust within the SCOTUS. It is devastating, whether it was leaked by a liberal or a conservative. Most eyes have focused on liberal law clerks. Indeed the Right already has one that they’re “sure” is the source, a law clerk for Justice Sotomayor. How convenient, the only “non-white” sitting Justice.
It does make more intuitive sense that it would be leaked by an outraged liberal, hoping to put immense pressure upon the court to change its ruling and give the Democrats a huge push into the election season.
But Barbara McQuade, former U.S. Attorney under Obama and now University of Michigan law professor, has a pretty good theory herself that she shared on Morning Joe:
“It really begs the question, who is behind this leak and why? There are a lot of theories. You know, one is that it is the outraged liberals on the court. The other is that it is some of the conservatives trying to dull the uproar when this ultimately comes out.”
I am not buying the dulling the outroar option. If one is going to take it upon oneself to do something that would ruin a career before it started, the stakes are going to be higher than “dulling the uproar.”
But she wasn’t done:
“There is also the possibility that it is somebody who wants to see this case locked in, this decision, because those who care about legitimacy, like Chief Justice [John] Roberts, will be very uninclined to want to change their view after it has been out there in the public domain, less it appears that they are caving to public pressure,” McQuade added. “So I think that really speaks a lot about what is going on in the internal dynamics of the court here.”
Now that is a legitimate reason. It is conceivable, possible, that someone like Justice Gorsuch was wavering. It actually doesn’t matter much if the Chief was wavering or not. The Court already had five votes. But for appearances sake, it does dull the legitimacy of the ruling when it is 5-4, using three of the newest justices, all appointed under Trump, and not the Chief. There is no conceivable way in my mind that Thomas, Coney Barrett, or Kavanaugh could have ever wavered in their belief as to this ruling. It is possible that someone like Gorsuch – who has been said to hate Kavanaugh – and sees himself more like the Chief, would be more inclined to follow precedent, and the Chief, even if he doesn’t like the results.
It still makes far more sense that the opinion was leaked by a liberal trying to stir up outrage just as we get into election season, giving Democrats a massive push, while also letting those five votes sit in the wind and get the fury in the reaction before the opinion is even released.
But have no doubt, the fact that it was leaked is a problem, especially if it came from the left. It would smack of “revenge.” And the left is supposed to be more high-minded. It will be interesting going forward to see whether the leaker is caught, whether the SCOTUS initiates an internal investigation (almost surely), and how intense it might be.
The Court is going to have enough trouble justifying its own legitimacy, reversing two of its most important rulings in history (Row and Casey). Now it also has to deal with obvious political infighting leading to another unprecedented move.
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