The White House reeeeeally doesn't want to condemn the SCOTUS leak

Reporters have been nudging Jen Psaki for two days to say something disapproving and for two days she’s dodged. Wednesday:

“I don’t think we have a particular view on that other than to say that we certainly note the unprecedented nature of it,” Psaki replied…

“While we have heard a number of raised concerns about the leak, our focus is on highlighting what the content in there would put at risk for women across the country … I would note that many Republicans have wanted to talk about that and not about whether they support the protection of a woman’s right to choose, a woman’s right to make decisions with her doctor about her health care, maybe not a surprise given that by more than a 2 to 1 margin, American want the Supreme Court to support abortion rights.”

Yesterday:

The left has spent all week accusing Republicans of being obsessed with the leak because they’re keen to change the subject from Roe being overturned. That’s not completely untrue, but some of the outrage about the leak on the right is sincere. Conservative institutionalists genuinely care about the legitimacy of the Court. And populists who don’t are furious that there may be a liberal plot afoot inside the Court to try to splinter what looks to be a five-vote anti-Roe majority.

The strangest part of liberals shouting “distraction!” when asked about the leak is that … the decision will drop eventually. The leak chatter will compete for public attention with the substance of Alito’s opinion this week but it’ll be a footnote once the Court renders its verdict on Roe. That’ll happen no later than the end of June, giving Democrats four solid months before the midterms to bang on about how “The Handmaid’s Tale” is real now or whatever. No harm in focusing on the leak for now.

But look at it from Psaki’s perspective. When your polling is as catastrophic as Biden’s is, there’s not a moment to waste in trying to turn the midterms into a referendum on abortion. Every day spent talking about the leak is a day not spent freaking out about the end of Roe.

So let’s talk about the leak. There are by some estimates 70 people who might plausibly have had access to Alito’s draft opinion, although the universe of suspects expands if you imagine the justices bringing their work home with them, where family members might access it. Tom Goldstein of SCOTUSblog makes a point that I also made in this post: There were actually two leaks here, not one. The first apparent leak was to the Wall Street Journal at the end of April, inspiring an editorial in which the Journal board coincidentally “speculated” that Alito might be drafting an opinion that would overturn Roe but that John Roberts was trying to thwart him by wooing away Kavanaugh or Barrett from the majority. That leak probably came from a conservative, Goldstein reasons, and was designed to try to spook Kavanaugh and Barrett into sticking with the majority.

That leak then inspired the counter-leak of Alito’s draft opinion to Politico, he theorizes:

The question here is who believed they would benefit from leaking the opinion itself. That document was much more likely to rally liberals than conservatives. It brought home the fact that the court was poised to overrule Roe in much more concrete terms than merely leaking the vote. The opinion is also a full-throated attack on abortion rights and – with important caveats – substantive due process rights more broadly. And as a first draft – without the benefit of later refinement – it does not yet present the critique of Roe in its most persuasive form.

It is also important to look at the leak of the opinion through the lens of the fact that someone – almost certainly a conservative – had just before leaked the court’s tentative decision and the state of the voting to The Wall Street Journal. That leak was itself an extraordinary and unethical breach of confidences and certainly caused very deep concern inside the court.

My guess is that someone on the left felt somewhat justified in releasing the opinion in response. Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett were considering.

I … guess? I don’t understand what a liberal would gain strategically by leaking the draft opinion if the final opinion that drops in June ends up being substantially similar to Alito’s draft. The country’s going to know eventually that five justices endorse Alito’s “full-throated attack,” which will then cause liberals to “rally.” Why risk your career in order to inform Americans a couple of months ahead of schedule?

If the final opinion that drops *isn’t* substantially similar to Alito’s draft, whether because the majority has collapsed or because the opinion ends up being watered down, then all it proves is that one of the conservatives wanted a less “full-throated” disposition of Roe in the end. How does it benefit liberals for Americans to know that?

The best argument that the leak came from a liberal is less strategic than nihilistic. Maybe someone inside the building was enraged by the decision and resolved to blow the place up metaphorically. A Court that would overturn Roe is unworthy of the public’s respect, the leaker may have concluded, and therefore its norms should no longer be respected. Let the people see how the judicial sausage is made, undermining the institution’s clerical mystique.

If that’s what happened, the leaker may have gotten more than they bargained for.

The argument that the leak came from a conservative is strategic, on the other hand. It’s this simple: Maybe the initial leak to the WSJ that was designed to scare the wavering justice into sticking with the majority didn’t succeed. The leaker may have perceived that the waverer was drifting further into Roberts’s camp in the aftermath and, in their desperation, chose to leak the entire draft opinion to show in detail what the waverer had agreed to initially before losing his or her nerve. It’s one thing for Kavanaugh or Barrett to have staked out a moderate position during deliberations from the outset, but to have supported overturning Roe at first — which the leak establishes — only to back away in the end would reek of cowardice, not just bad judgment. Their reputation on the right would never recover.

So, now that the public knows what their original position was, they had better stick with it, huh?

In lieu of an exit question, read Dan McLaughlin’s lengthy analysis of the leak and its motives. He’s right that modern law-school grads from elite schools tend to be progressive and activist-minded, making it easy to imagine a liberal clerk going nuclear here. He also argues that five of the six conservative justices seem unlikely to have leaked — but notably omits Alito’s office, which of course would have an intense interest in holding together the initial majority to overturn Roe. It’s not just a matter of achieving a momentous ideological victory, it’s a matter of protecting an opinion that’ll define his career.