Allahpundit covered this question earlier today and his is the most even-handed take on the competing arguments I’ve seen. If you haven’t read it you should read the whole thing, but the very short version is this. The leak could have come from a progressive looking to pressure the court to change its decision or, alternatively, it could have come from a conservative looking to lock the court in to the arguments in the draft decision.
Both arguments sound plausible to me but I have to say that my first impulse was exactly the same as Allahpundit’s. Last night I assumed it is was the work of someone on the left, probably someone working for Justice Sotomayor. This afternoon I caught up to a piece published earlier today by Bari Weiss which has sort of brought me back around to my initial suspicion.
There are really a couple of ways to look at this question. The first is cui bono? Who benefits from the leak. And as already mentioned, you really can make an argument for either side seeing some benefit in the leak. But there’s another way to look at this. What type of person would be most likely to leak this? And that’s where I think Weiss makes a compelling case that the most likely person is a young person on the left.
In March, we ran a piece by the reporter Aaron Sibarium called “The Takeover of America’s Legal System.” The story made the case, backed up by exhaustive reporting, that just as education and the press and medicine were being transformed from within, so too, was the law. And those who comforted themselves with the notion that the law would be a bulwark against the new dogma were in for a rude awakening…
The Supreme Court was always the most cloistered governmental institution in America—the one where wisdom and precedent and reverence for our great constitutional tradition outweighed everything else. If there was something sacred that remained, this was it. Yes, there have been leaks from the Court before. But as Politico pointed out, last night’s leak was historic, and not in a good way: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”
I called up one of the smartest professors I know at one of the top law schools in the country, and he echoed that: “To my knowledge, it’s never happened before in the modern history of the court. It is the most serious possible breach.”
Serious, severe, shocking, he said. But in the end, not surprising. Why not? Here’s how he put it: “To me, the leak is not surprising because many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing.”
What did he mean by that? “They think that everything is violence. And so everything is permitted.”
He went on: “I’m sure this person sees themselves as a whistleblower. What they don’t understand is that, by leaking this, they violate the trust that is necessary to maintain the institution.”
To be clear, Weiss isn’t saying she’s certain who leaked this only that it does seem to fit with a certain view of the world that has become increasingly more common in every field in the past few years.
What type of person would be most likely to leak this? They type of person who sees compliance with progressive views as far more valuable than liberal concerns like collegiality and debate. The kind of person that would seek to oust a top science writer at their own newspaper over something they said years earlier. The kind of person who would seek to publicly destroy the life of someone over a Halloween costume they wore to a party years earlier. The kind of person who loves Harry Potter but sees JK Rowling as a real life Voldemort. This is a definite type these days, so much so that advertisers target them specifically. To use a more recent example, it’s the kind of person who would cry on TV about women suffering abuse online and then out another woman online and subject her to similar abuse because that woman has bad opinions.
Again, it’s not conclusive and just because it makes perfect sense doesn’t mean it’s true. But if I had to guess what type of person would be willing to violate the long-standing culture of the institution they work for I would guess it was someone determined to see social justice triumph at any cost. Hopefully we’ll get an actual answer to this question in the next few weeks. Until we do, it’s all speculation.