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The public evaluates Supreme Court opinions based on results


One thing about the fake piety surrounding the leak of Alito’s draft opinion is that it’s extremely unlikely to be an important story for long. This is true for the same reason that the reasoning of Supreme Court opinions has little to do with their ultimate legitimacy: the public judges opinions on results and doesn’t care about inside baseball arcana:

Another interesting thing is that the leak seems unlikely to achieve the goals it’s widely assumed leakers are pursuing. The theory that the leak comes from the right assumes that the leak was trying to “lock in” a wavering vote. Leaving aside how unlikely it is that any of the 5 are wavering, a leak can’t actually “lock in” their vote. If the were worried above all about minimizing criticism from other conservatives, they wouldn’t be wavering! The criticism is ultimately going to come from the right because the justice didn’t vote to overrule Roe, not one what their conference vote was. If they’re determined to be Institutionalist Mavericks, if anything staying the course despite attempts to pressure you by leaking just fits your narrative.

And this isn’t even purely hypothetical — the conservative chambers were leaking like crazy during the ACA case to try to pressure Roberts back into the fold after he switched his vote(s) after conference. This…did not work, at all.

If it came from the left, if it was intended to achieve some strategic goal as opposed to being a cry of frustration against an out-of-control Court, it’s not clear what it would be. Cf., for example, Bari Weiss’s fevered imagination:

The most obvious take here is that the Democrats were in for a bruising in the midterms and this was leaked by a liberal to galvanize Democrats. Galvanize how? Perhaps to get voters to turn out as if their lives depended on it. Perhaps to pass a law before the midterms legalizing abortion. (Here’s Bernie Sanders on Twitter last night: “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”) Perhaps to reanimate the case for court-packing.

The thing is that leaking the opinion per se advances none of these goals, the latter two of which are not happening under any circumstances anyway. The thing is that overruling Roe isn’t like John Podesta’s emails, which were considered newsworthy ONLY because they were hacked and leaked. People are going to notice! Whatever backlash ensues after the decision comes down will happen anyway, and it will be happen because Roe has been overruled, not because the opinion was leaked.

The fact that the most-offered reasons don’t make any sense doesn’t mean they weren’t the real motivation — people can act for irrational motives, and lawyers in particular tend to project stuff only they care about to the public. But ultimately this leak is going to be a very minor story that will have little-to-no effect on the political impact of the decision coming down.

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