Someone inside the Supreme Court leaked a draft majority opinion written by Justice Samuel Alito that would overturn two landmark abortion rights decisions. We know that a lot.
We don't know why they did it. The main story here is that the Supreme Court has five votes to overturn women's reproductive rights, but the provenance of the leak still matters. It matters for abortion rights as it could help the public understand the behind-the-scenes politics within the court that could affect the ultimate outcome of the case.
There are very few people who can leak a draft opinion from the Supreme Court. The justices themselves, their law clerks, and their support staff are all included.
Below are the current theories that may or may not affect the outcome.
After the story on the leaked opinion was published, there was speculation that it must have been done in anger by a liberal law clerk. The right-wing reaction to this theory has come to dominate after it was initially praised by some left-leaning organizations.
The leaker must be a clerk for one of the liberal justices according to Republican political consultants and media figures. They put a photo of the clerk on the internet. The Huffington Post is not naming this person in order to avoid putting a baseless target on them.
There is no evidence that this person was the leaker because they are liberal and opposed the nomination of Justice Kavanaugh as many left-leaning lawyers were, and at one point spoke to one of the two reporters who broke the leak story.
This theory is plausible. It doesn't make sense.
The liberal bloc on the court lacks real power and leaking a draft wouldn't fix that. The liberal justices have to convince two Republicans to come to their side, which is a very high hill to climb on a high priority issue for the conservative movement.
There is the timing. The opinion was written in February. Shouldn't we leak it months ago? Amy Kapczynski, a professor at Yale Law School and former Supreme Court clerk, said on Tuesday that the liberals try to influence majority opinions by making small changes around the edges.
Kapczynski asked, "Why leak something and undermine that whole strategy?"
Protesters took to the steps of the Supreme Court after a leaked opinion showed that five conservatives plan on ending abortion. The photo was taken by Win McNamee.
It is possible that the leaker is a liberal law clerk who wants to be anointed as a hero by the Corporate Fake News MSDNC.
It doesn't make sense if the theory is that they were trying to change the outcome. Conservatives will claim that Democrats are going to do an insurrection on the Supreme Court, but you would have to hammer a pylon through your brain to actually believe that.
A conservative law clerk leaked the opinion to make sure it was the final one. There is no evidence that this theory is correct, but it does have one point in its favor: It is based on the history and structure of the Supreme Court.
A vote is taken on the outcome of a decision and the most senior justice assigns the opinion to a member of the grouping with a majority of five or more votes. The other justices write their dissents and concurrences after the decision has been edited. Dissents and first concurrences are circulating. The majority opinion can be edited.
The timing of the concurrences is about the right, according to Kapczynski.
The point at which justices may change their minds about the original opinion is at this point.
Roberts could be trying to peel off the original five justices who joined Alito's majority opinion in order to get an opinion that does limit abortion but stops short of overturning the case.
The leaked majority opinion was written by Justice Samuel Alito. AP Photo/Carolyn Kaster
Roberts has always kept the legitimacy of the court in mind. He has sought to slow-walk the social changes the court is pursuing. He did not join Alito in his leaked majority opinion in allowing Texas' recent anti-abortion law to go into effect.
If a conservative clerk wanted to prevent the original group of five from jumping ship, leaking the draft could be a way to do it. If the court announces an opinion in June that doesn't overturn the law of the land, they will be assailed as David Souter.
Conservative media had already reported signs that conservatives were worried about Roberts. The Wall Street Journal warned on April 26 that Roberts may be trying to turn another Justice, just as he did in the case of theAffordable Care Act. The editorial said that Alito was the author of the majority opinion.
We hope he doesn't succeed for the good of the court and the country, according to the editorial.
Four days after The Wall Street Journal editorial, The New York Times reported that the reporters working on the story were working on a warning shot.
If a conservative clerk wanted to prevent justices from that original group of five from jumping ship, leaking the draft could be a way to do it.
This wouldn't be the first time that conservative media gave an idea of the workings of the court.
In May of 2012 conservative pundits and media outlets wrote a series of columns warning that Roberts may have changed his mind and decided to side with the liberals in the case. The existence of these columns seemed to suggest that the conservatives had lost Roberts.
The National Review called on Roberts to ignore calls for him to side with liberals and uphold the health care mandate. On May 26, 2012 a column by George Will came out with the headline, "Liberals put the squeeze on Justice Roberts."
A right-wing bat signal went out after the message from the Court that Roberts had voted against it.
George Will and others answered the call. Conservatives, who had been noticeably quiet about the outcome of the case after the conference, suddenly perked up in the home stretch, precisely when the war was being waged within the Court over the final vote.
The high court's Bostock decision affirmed that gay and trans people are protected from discrimination under the Civil Rights Act. National Review and The Wall Street Journal published pieces in the month after the case was heard to try to steer Justice Neil Gorsuch away from the liberal arguments made by Elena Kagan.
The majority opinion was written based on the original understanding of the text of the Civil Rights Act.
There are pro-choice demonstrators in front of the Freedom Tower. The picture was taken by Chan Khan.
There is a logic to the theory that a conservative clerk leaked the opinion. It could be used to prevent any of the five justices who signed on to Alito from leaking their opinion.
It is an important statement on the internal struggles of the court, an opaque and unelected institution with incredible power over American lives.
Let's work this one out, even though we are getting into more crazy theories.
Sean Trende, the senior elections analyst at Real Clear Politics, said on Tuesday that the story that makes the most sense is actually Chief Justice Roberts, trying to illustrate to a swing justice what the backlash would be like.
This has a logic to it, but, as Trende notes, nothing could be more out of character than for Roberts or one of his clerks to do this. This leaked opinion goes against everything that he has worked toward as chief justice. It's hard to imagine that Mr. Court would allow this leak and then issue a press release announcing an investigation into the leak.
Could the opinion have been leaked by a support staffer who accidentally left a copy in a printer? Was it a computer hack?
These theories are not very likely. A person familiar with the court's deliberations explains in the article that four of the other Republican-appointed justices are Clarence Thomas.
That information is crucial to the story and is likely information that could only be learned from a justice or law clerk.
The article was originally on HuffPost.
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