Rest assured, almost no one will believe this … unless Justice Samuel Alito’s draft opinion survives nearly intact into the controlling majority opinion in Dobbs. Chief Justice John Roberts spoke publicly for the first time about the leak of the draft, calling it “absolutely appalling,” but arguing that the leak is not indicative of the “dedicated” workforce at the Supreme Court.
As for the case itself, neither the leak nor the dramatic shrieking or hosannas will impact the “decision process,” Roberts promised:
Chief Justice John G. Roberts Jr. told a crowd of judges and lawyers Thursday that the leak of a Supreme Court draft opinion that would overturn Roe v. Wade is “absolutely appalling,” but will not affect the final outcome of the court’s historic deliberations on the abortion issue.
“A leak of this sort — let’s assume that’s what it is — is absolutely appalling, and if the people behind it, or person behind it, thinks that it’s going to have an effect on our decision process, that’s absolutely foolish,” Roberts told the 11th Circuit Judicial Conference meeting here.
“We will go about doing our work as we would in any event, regardless of the leak,” he said. Roberts has confirmed that the draft of an opinion by Justice Samuel A. Alito Jr., published Monday night by Politico, was genuine, though not final.
Well, what else could Roberts say? “Yeah, on second thought, we all went back and started from scratch”? Even Congress shows more fortitude than that, and they’re actually elected representatives of the people. The federal judiciary and its lifetime appointment insulates that branch of government from the passions and fury of the governed.
In theory, anyway. When the pitchforks and torches show up at your door … who knows? That was almost certainly the point of the leak, although the more complicated hypothesis that it was leaked to freeze the five-person majority into overturning Roe cannot be *entirely* discounted.
Frankly, there’s no way now that this leak and the eventual decision doesn’t exponentially generate conspiracy theories regardless of what the court decides. The cleanest outcome will be if Alito’s draft survives substantially as the majority opinion and the vote remains either 5-3-1, 5-4, or 6-3 on that basis. But even then, people will claim that the leak artificially froze the court in mid-deliberation and produced a corrupt result, and (futile) demands will rise that it be set aside. If the vote changes to uphold Roe and Casey and strike down Dobbs, relegating Alito’s draft to a lengthy dissent, accusations will explode that the court had been extorted into changing its mind by the leak and subsequent threats of violence, both implicit and explicit.
And if the decision changes to a Robertsian compromise that strikes down Casey while upholding Roe and Dobbs, well, everyone will just conclude that Roberts leaked the draft himself.
In the end, the only thing the court can do is to finish the work on Dobbs as soon as possible and get it out the door. They could, as Josh Blackman suggested at Reason’s Volokh Conspiracy this week, use the troubled precedent of Ex parte Quirin to issue a snap ruling and follow up with the opinion and dissents later. That would at least reassure everyone that the leak campaign didn’t change the overall vote.
Will Roberts go for that? Maybe he’s still hoping to change some votes too.
Update: I should have included it from the beginning, but I interviewed Josh Blackman in my latest podcast, and discussed Ex parte Quirin. It’s first up in the video version below, but if you prefer Spotify or Apple Podcast, you can find it there as well.
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