Home / General / Republican chambers leaking as Republicans pretend to think that leaks from the Supreme Court are a constitutional crisis

Republican chambers leaking as Republicans pretend to think that leaks from the Supreme Court are a constitutional crisis


This Post story is some interesting inside baseball about Roberts trying and apparently failing to cobble together a majority for an opinion that says it’s not overruling Roe (even as, by upholding the Mississippi statute, it is overruling Roe.) But note this:

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.

And there were also leaks from the conservative chambers before the Alito draft opinion surfaced:

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 Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.

What a lucky guess! (Anything can happen, of course, but generally opinions in politically salient 5-4 cases that can’t or aren’t written by the Chief Justice are assigned to the most moderate members of the coalition to maximize the chances that it holds.)

Anyway, we don’t know who leaked the draft opinion, but we know the conservative chambers have been like a sieve, and this is being done for the explicit purpose of pressuring the explicitly anti-Roe votes to hold firm. Nor is there some red line about linking drafts, per se. On the one hand by people who care about The Sacred Norms of the Supreme Court the secrecy of conference deliberations is a big deal (even clerks aren’t allowed in the room.) On the other, an actual opinion draft has more value to the public. As with everything else, the attempt to gin up a panic over the leak of the draft opinion is 100% pure uncut bad faith on part of the movement who has won the popular vote once since 1988 but thinks they’re entitled to rule like kings anyway. And they don’t want to see any sidewalk chalk protests when they get their way, either — that would be Cancel Culture.

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