Got ourselves a good SCOTUS detective mystery!
As predicted, a) Roe v Wade is history and b) all the Very Serious People on Twitter are treating Alito’s leaked decision like a bolt from the blue, and not something preordained the minute RBG shuffled off this mortal coil. It is not an exaggeration to say that all of Trump’s judges dedicated their entire legal careers to the singular goal of overturning Roe and, while older, Thomas and Alito certainly have been waiting for decades as well. Which way Roberts votes will be interesting — I predict he’ll write a separate opinion taking a mushy-middle path — but that is of only academic interest.
What’s more interesting: we got a classic closed-room whodunit with nine suspects. Which justice, or which justice’s people/family, leaked the draft of Alito’s opinion to Politico?
My layperson’s breakdown, from least to most likely of the suspects:
8) Chief Justice Roberts. The court’s biggest scold on precedents, who obsesses on his court’s legacy in the history books, and who takes his title more seriously than any other CJ in my memory (tbf there’ve only been like 2), is clearly the one most enraged by last night’s news. I guess there’s always the possibility that one of his clerks went off the reservation; but if they know even the slightest thing about their boss, they would know that would mean taking their young legal career, stuffing it into a fancy Gucci GG legal briefcase, and tossing it in the Potomac.
7) Alito: Sure, he’s as right-wing as they come. But it’s his name on the opinion. Therefore, this leak makes him look bad in the public mind. Very bad. Some will see him as the default suspect. That’s unfair, but it is what it is. He is no doubt almost as incensed as Roberts.
6) Gorsuch: The most respectable of the Trump Triumvirate, the Democrats found the least purchase against him at his confirmation. (Remember all those But Gorsuch memes?) It just doesn’t click that a guy with such a gentlemanly vibe would throw away his image for a crude gotcha; although, sure, no random citizen like you or me truly knows him and, as with any of the nine, the “rogue clerk” scenario remains a possibility.
5) Kavanaugh: While he had the toughest time of the Trump judges in confirmation, he’s been remarkably restrained attitude-wise on the bench and has even sided with the liberal judges on rare occurrences. However, he may still have an ax to grind. Perhaps after a few too many beers, he emailed the draft over to Politico as the ultimate middle finger to the Democrats of the Senate who gave him such a hard time, whom he knows cannot pass any law replacing Roe given the filibuster. Unlikely, but you never know.
4) Sotomayor or Kagan: The conservative-o-sphere has assumed that it had to be one of the liberal judges. Laura Ingraham set the party line with her rant as the story broke last night, and MAGA has observed flawless message discipline since. However… facts don’t care about their feelings, and I struggle to see what either Obama judge gains from the early advertisement of their crushing defeat. “But the midterms” doesn’t jibe — the full opinion will be released months before November either way. The “they’re trying to intimidate the conservatives into changing their vote” is horse puckey as well: five justices would drive through a minefield to overturn Roe; if anything, the leak would have the opposite effect on the most moderate of the conservatives, encouraging Roberts to vote with Alito out of spite. Also, the leak blunts the impact on the elections, as the news of the leak itself is almost as big of a story as the Roe repeal. But, OTOH, all that said — of course they, or one of their more idealistic clerks, would have the added motivation of rage.
3) Barrett. I do not think she leaked it personally, but we come upon one very concerning stumbling block: Her husband. They practice a strictly conservative Catholic marriage where the man is the inviolable lord and master of the household, and the wife his submissive puppet. They belong to a curious sect called the People of Praise. I do not think he has written too many donations to Democratic candidates. In any event, if her husband had asked to see the draft opinion, Barrett would have of course complied without a word.
2) Breyer. This is the liberal most likely to have leaked it for the simple reason that he’s retiring, and has nothing to lose. As the court’s longstanding liberal firebrand, his legal career spanned the entire duration of Roe’s life — and a man who was around when Roe was first handed down might have reason to be angrier than his colleagues. But then again, the old man might have reason to worry such a leak would tarnish his reputation. We have to then start to wonder which justice might actually think a leak, if traced back to them, would *help* their reputation, which brings us to…
1: Clarence Thomas. The most Republican of the justices sees his role as that of a senator, not a judge; he is there to push Republican interests, not interpret the Constitution. (yes, the rest of them save Roberts can also be accused of partisanship. None even approach Thomas’ level.) If the leak gets traced to him, he may well think he would be held up as MAGA’s hero on the bench, triggering the stick-in-the-mud Chief Justice and owning the libtards. His wife is a certifiable, Trump-is-my-king, burn-the-constitution, liberals-to-Gitmo 1/6 insurrectionist. Asking her to wait in silence for an entire month before her husband’s great victory over the hated Left is announced defies common sense. Also, consider who would clerk for Thomas: instead of quiet careerists, he would attract foaming-at-the-mouth QAnon-adjacent rageheads. Ginni Thomas, her husband, or a sympathetic clerk emailed over the PDF from a burner account, and that’s my final answer.
There’s a good chance we *never* get to know the leaker’s true identity; and if we do, it will likely only be because they confessed (assuming they weren’t a complete idiot with how they went about their dirty deed). But before asking who, ask why. And that question leads inexorably to ol’ Coke-Can Clarence.
