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Leaking SCOTUS opinions

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Mark Graber provides some useful historical context in regard to justices leaking their opinions prior to official publication. This happened regularly back in the day, including most notably the fact that James Buchanan was told about the outcome of Dred Scott well before the opinion was public (If I had to bet on it I’d wager that Alito leaked his draft opinion, or rather had one of his button men do it — the justices have a lot of buffers — in order to cut off Roberts from continuing to pressure Kavanaugh and ACB to defect to John Roberts’s Basketful of Puppies Fake Minimalism Judicial Playland.)

The Republic did not fall, teeter, or even flinch when justices leaked information.  The impact of leaking was considerably to the right of the decimal point.  Leak or no leak, Democrats were thrilled that the Supreme Court was willing to take the lead resolving whether Congress could ban slavery in the territories.  Abraham Lincoln did not need evidence of the correspondence between Buchanan, Catron and Grier to claim a conspiracy to nationalize slavery between Democratic elected officials and Democrats on the Supreme Court during his debates with Stephen Douglas.  The judicial leaks in the Prize Cases confirmed what many of the justices had been saying about the blockade in their capacity as federal circuit judges and in their private correspondence (which was often public).  The leaks in Milligan gave some members of Congress a little more time to think about how to operate Reconstruction with a Supreme Court not fond of martial rule.

This history suggests that the leak of the majority opinion in Dobbs is far more analogous to a leak of the NCAA basketball tournament brackets than a leak of sensitive national security information.  There was a serious breach of confidence. A big media show was ruined, whether that show be “Selection Sunday” or “Last Opinion Day in June.”  Nevertheless, no vital secrets were revealed.  Alito’s opinion looks like every other opinion he has ever written on major subjects.  There are no surprises.  The justices can continue to discuss the merits and demerits of that opinion unabated.  At most, the general public learned in the beginning of May what they would have otherwise learned at the end of June.  Just as the real issue in Dred Scott is that Grier voted to grant slaveholders a right to bring their human property into the territories, so the issue in Dobbs is whether the justices will uphold or violate fundamental constitutional and human rights by declaring that states are constitutionally empowered to prohibit abortion.

This is obviously correct, and just a touch of historical context makes the histrionics about Alito leaking his own opinion ahead of time look especially ridiculous. Check out this lede from Joan Biskupic:

The US Supreme Court‘s legitimacy has been deeply pierced, and it may never recover its stature in the eyes of America.

What’s particularly funny about this is that Biskupic was a recipient of the same leak I got from inside the Court about Roberts’s switching his vote in the ACA case — indeed she wrote a whole book about it — and the Republic did not teeter when she revealed this (Well it did but not because of that).

The Supreme Court is a thoroughly political institution, and — key point here — there’s no possible way it couldn’t be, given the structure of our political institutions. The less obscurantist priestcraft surrounding it the better.

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