May 10, 2022
Ever since Politico leaked the working draft of Justice Alito’s majority opinion overturning Roe v. Wade, court watchers everywhere have speculated where the leak came from.
As it turns out, there were three leaks. The first was to the Wall Street Journal editorial board, telling them that a majority of the Court had voted to uphold the Mississippi law and overturn Roe. The second and third leaks were to Politico. The first one revealed that five members of the court – Alito, Kavanaugh, Barrett, Thomas and Gorsuch – had voted to overturn Roe and that Chief Justice Roberts’ position was not yet apparent. This was followed by the subsequent leak to Politico, which included Alito’s draft opinion. That leak probably came from the same person as the second leak.
So, who would have had an interest in leaking this information?
According to Tom Goldstein at SCOTUS Blog, the first leaker was probably on the conservative side of the issue, whose goal was to make public the fact that Justice Kavanaugh had thrown in his lot with Alito, and to lock him into the opinion overturning Roe. The second leaker, he surmises, was probably on the liberal side, in an effort perhaps to rally public opinion. While the Court is, of course, ostensibly impervious to political pressure, if, as Goldstein suggests, the leaker was someone who wants Roe to remain the law of the land, perhaps he or she thought a strong public reaction might persuade Justice Kavanaugh to join with Justice Roberts in concurring with the decision upholding the Mississippi law (which outlaws abortions after 12 weeks) while not going as far as Alito in jettisoning Roe altogether.
We live in interesting times.