Grahame Steuben

Chief Justice John Roberts has – to no one’s surprise – announced that his leak investigation has failed to turn up a clear answer on the perpetrator.  As anyone who has conducted a leak investigation will tell you, it is extremely rare that someone leaves the kinds of tracks that would point to them. Journalists certainly won’t reveal their sources, even when held in contempt, so the result is almost invariably unsatisfying.   

Of course this result led to the usual finger-pointing and conspiracy theory spinning. But there is one narrative that is particularly pernicious and needs to be nipped in the bud: that the leak came from the chambers of a conservative Justice or even the Justices themselves in an attempt to “galvanize the right” behind the opinion.    

This theory should be laughable on its face – as I’ll discuss in a minute – but instead is being used with surprising traction by typical pundits and apologists on the Left to try to further demonize Justices Alito and Thomas in particular.  The strategy seems to be to undermine their reputations publicly, and potentially influence the newer Republican appointees (particularly Kavanaugh and Barrett) to warn them off of the reputational and social consequences of the kind of principled textualIsm and originalism exhibited by Alito and Thomas that the Left recognizes is so dangerous to their 60 year counter-majoritarian power grab of legislation by judicial fiat.  

Let’s examine what you would have to believe to accept the idea that someone like Justice Alito or Justice Thomas would leak the Dobbs opinion:

1. That they would not recognize that someone might try to kill someone on the majority before final publication in order to try to change the outcome.  Don’t forget, this isn’t some conservative trope – it actually happened after the leak.  Justice Kavanaugh’s putative assassin was unambiguous in his statements to the police of his intention to change the outcome in Dobbs and Bruen (the New York gun case).

There were credible death threats on a number of conservative justices after the leak.  That was easily foreseeable, particularly by people as smart as Supreme Court justices.  Why would they risk that?

2. That one of his colleagues was wavering and that leaking the opinion would create public pressure to stick with the result. Seriously?  Because there is such a rich history of public conservative pressure and outcry? Name one example of that. Rather, what happened after the leak was a deafening groundswell of screams, doomsday predictions and threats from the Left, all of which was completely predictable.

Any consecutive would realize that this ensuing public pressure from a leak would be overwhelmingly from the Left and would actually jeopardize, not solidify, the outcome of the draft with anyone who was wavering.

Further evidence of the failure of this theory is that the final opinion had virtually no softening or conciliatory changes from the leaked draft, underscoring that the original majority was solid in its conviction from the beginning.  

3.  That a conservative leaker would trust a left-leaning reporter from a left-leaning publication like Politico not to put them as the source to further destroy the Justice personally, and the outcome of the case in particular.   Justices Alito and Thomas are famously reluctant to speak to the press, but we’re supposed to believe that they thought, “well maybe I’ll talk to Politico about this…” Frankly, this reason alone shows the complete absurdity of the theory.  

These reasons are all practical.  None of them get to the more basic point that Justices Alito and Thomas are men of exceptional ethical integrity who do not subscribe to an ends justify the means approach to Supreme Court decision making.  They care more about process than result.  This is in sharp contrast to the hallmark of the post-Warren Court interpretavist philosophy that has prevailed on the Left that substance – results – matter more than process.   

For all of these reasons it is clear that the leaker here was unambiguously of that school of thought, seeking to protect Roe v. Wade at any and all costs.  There have been some compelling theories as to who it might have been, and one clerk from a liberal Justice’s chambers in particular has a history of complete dedication and activism on abortion rights, and a connection to the reporter who published the leaked opinion. If they truly believed in the rightness of what they did, why don’t they proudly come forward to take credit.   

They will not, of course, both because they recognize the appropriate sanctions that would follow, and because their continued anonymity allows their allies in the press to protect them while besmirching the reputations of men like Justices Alito and Thomas.  Don’t let them.