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Emergency Plumber Needed: SCOTUS Leaking Like a Sieve

Are the justices or those close to them hashing out the abortion case in the press?

The recent leak of Supreme Court Justice Samuel Alito’s draft opinion was not the first in Dobbs v. Jackson Women’s Health, the Roe v. Wade redux, and it won’t be the last, either. While no other written opinions were published, several news outlets have now run stories inferring justices are trying to steer media coverage of how the Court works through Dobbs. The latest involves Jeff Bezos’ newspaper, which includes three sources, speaking out of school about the deliberations in Dobbs, and they’re all conservative.

The first disclosure wasn’t Alito’s draft. While leaks of draft opinions are unheard of, hints and other revelations of judicial leanings are less rare. In this instance, it wasn’t even identified as such by The Wall Street Journal, which published an April 26 article called “Abortion and the Supreme Court” by the Editorial Board. After identifying justices on both sides of the issue, the piece claimed:

“But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an ‘undue burden’ on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice [Clarence] Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.”

Tom Goldstein, one of the nation’s most experienced Supreme Court practitioners, with more than 100 Supreme Court cases, wrote about the WSJ article in SCOTUSblog:

“While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito is drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito did draft that opinion.”

For those looking for who may have leaked Alito’s opinion and why, the earlier disclosure must be factored in to the equation. Perhaps the release of the draft opinion was retaliatory rather than peremptory. On May 7, DC’s major newspaper contained more leaks, this time from “three conservatives close to the court.”  We learn that “as of last week, the majority of five justices to strike Roe remains intact.” And:

“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.”

What at first may have appeared to be a single actor trying to somehow torpedo the case may actually involve more justices, or those close to them, fighting over Dobbs in the press instead of the Supreme Court’s conference room. The Court’s published calendar indicates no scheduled opinion release days, but the ruling in Dobbs and all other outstanding cases are expected by the end of June.

Read More From Scott D. Cosenza, Esq.

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