Conservative sources tell WaPo: The five votes to overturn Roe are still there

Erin Schaff/The New York Times via AP, Pool

They were there as of last week, at least. Which, as I’ll explain, logically makes it more likely that the person who leaked Alito’s draft was a liberal.

There sure is a lot of leaking happening at the Court all of a sudden, though.

And not all of it can be blamed on the libs:

The leaked draft opinion is dated in February and is almost surely obsolete now, as justices have had time to offer dissents and revisions. But as of last week, the majority of five justices to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter.

A person close to the most conservative members of the court said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now. But the other conservatives were more interested in an opinion that overturned the precedents, the person said. A spokeswoman for the court declined to comment, and messages extended to justices were unreturned.

The scenario in which it makes strategic sense for a conservative to leak Alito’s opinion is if the five-vote majority has fractured and one or more justices is preparing to switch to Roberts’s opinion. Leaking the Alito draft to get pro-lifers’ hopes up would make it even more politically painful for the defector to follow through with their switch, as it would demonstrate that they’d lost their nerve at some point instead of having agreed with Roberts all along. But if the five votes to overturn are still there then no one’s lost their nerve. So what motive would any conservative have had to leak?

I guess it’s possible that one leaked because, while there are still five votes to overturn Roe, there may no longer be five votes for Alito’s draft. (Maybe there were never five votes for it. It was a first draft, after all.) Maybe the leaker is unimpressed with whatever opinion is currently circulating and wanted to put Alito’s version out there to show pro-lifers what they could have had if someone in the majority hadn’t said no for whatever reason.

But that strikes me as unlikely. How would Alito’s draft be meaningfully watered down while still overturning Roe? It makes a straightforward constitutional argument: There’s no unwritten right to abortion protected by the Constitution because abortion isn’t “deeply rooted” in the country’s history. If they have five votes to overturn Roe, I’m not sure on what basis any of the five might have taken great exception to Alito’s opinion.

So if WaPo’s report is true, it means that something substantially similar to Alito’s draft must be shaping up to be the final opinion. In which case the only leak theory that makes sense is that a liberal leaked the Alito opinion out of frustration, to try to immolate the Court’s institutional credibility. Maybe he or she had refrained for several months, hoping that Roberts would be able to flip Barrett or Kavanaugh, but recently lost all hope upon realizing that the five-vote anti-Roe majority hasn’t budged. So he or she leaked, burning down the Court symbolically before it renders its landmark decision. Former federal judge Michael Luttig told WaPo that the Court will never recover: “One has to believe the leaker of this draft opinion disgracefully intended to feed and drive the developing narrative of the court’s illegitimacy. Whatever his or her motive, it is a breathtaking act of dishonor and betrayal of our highest court and of our country.”

As for whether conservative sources should be leaking to the Post today after Republicans just spent the past week righteously attacking the leaker of the Alito opinion: Uh, no. But now that the inner workings of the Court are on public view, it’s inevitable that both sides will start leaking to try to control the narrative about the Dobbs decision and how it came to be. In a strange way it reminds me of the problem James Comey created for himself in 2016 when he made the foolish decision to explain publicly why Hillary Clinton wasn’t charged in Emailgate. Typically prosecutors don’t elaborate on decisions not to charge a suspect but Comey said he felt obliged in that case because of the perceptions of impropriety generated by Bill Clinton’s visit with then-AG Loretta Lynch. That foolish decision then led to Comey’s decision right before the election to inform the public that the Emailgate probe had been reopened after new Hillary emails were discovered on Anthony Weiner’s laptop. Having initially given the public an unusual glimpse behind the curtain into the FBI’s decisionmaking, he thought he was obliged to keep them apprised of developments going forward in the name of full transparency. It may have made the difference for Trump on Election Day.

Comey created his own dilemma about how much to share with the public whereas the Court had its current dilemma thrust upon it by an unknown leaker. But you can see how one rash disclosure begets others per the fact that conservatives are now leaking to WaPo. The leaked draft made conservative voters panic that one of the five votes for Alito’s opinion had gone wobbly; now sources close to the Court evidently are trying to calm them and to show the leaker that his or her attempt to splinter the five-vote majority failed. I’d bet heavily that there’ll be more leaking once the Dobbs decision is handed down about how the justices reacted to the leaked draft and how it affected, or rather didn’t affect, their deliberations. Now that the institution’s integrity is at issue, interested parties will be more proactive than usual in how they use the media to try to shape public perceptions.

I’ll leave you with this clip of Ted Cruz discussing the impending end of Roe. He’s pretty “rah rah federalism” here. Does that mean he’d oppose legislation that would ban Roe nationwide?