Jurisprudence

Who Leaked Samuel Alito’s Draft Opinion Striking Down Roe v. Wade—and Why?

Protesters carry signs saying "Bans off Our Bodies".
Demonstrators gather outside of the U.S. Supreme Court on Monday night. Kevin Dietsch/Getty Images

On Monday evening, Politico reported that five members of the Supreme Court had privately voted to strike down Roe v. Wade and end the constitutional right to an abortion. Alongside that report came the unprecedented publication of Justice Samuel Alito’s apparent full draft opinion, which was dated in February and does not appear to include the input of other justices.

If the five justices maintain their votes to strike down Roe once the opinion is announced, likely in June, the immediate consequence is that abortion would become illegal in about half of all U.S. states. This would obviously be an earthquake in American social and political life, and it is the most consequential piece of news from Monday’s leak.

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There is, however, another monumental story: that the opinion was leaked to begin with, and from one of the most secretive bodies in the country. A draft Supreme Court opinion has never been leaked in full in history, and there hasn’t been an advance leak of an outcome since 1986. Only the justices themselves and their small clique of law clerks would likely have access to such a draft. The closest similar example in the past 32 years came when somebody leaked, in 2012, that Chief Justice John Roberts had initially voted to strike down all of Obamacare, before changing his mind and voting to uphold the individual mandate. (Notably, as law professor Jonathan Peters wrote on Twitter, details of the original 1973 decision in Roe v. Wade, including the vote itself, were reported in advance by Time magazine.)

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This leak, though, is so shocking because there are many reasons for how and why the court is normally able to maintain strict secrecy. As former clerk Stephen L. Carter wrote for the Washington Post in 2017, the court has been America’s “last leak-proof institution.” As Carter noted, Supreme Court leaks were so rare because if a clerk was behind one, they would likely be caught—and at great professional risk. “The staff of the Supreme Court is very small, and the circle of knowledge of pending opinions is even smaller,” Carter wrote. “In particular, a law clerk who talked to a reporter might find a once high-flying legal career ruined. And of course fewer people in the know means fewer potential leakers.” If one of the justices themselves leaked, meanwhile, we’d likely never know, because there is no governing body to investigate the question aside from an impeachment inquiry, which is unlikely to happen over a leak. Indeed, we still have not learned who the leaker of Roberts’ Obamacare vote was, and that came after the decision. (There’s been considerable speculation around that question.)

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So who leaked the draft Dobbs opinion, and why? From our completely speculative position, there seem to be four logical scenarios that emerged on Monday night.

Scenario One: A progressive clerk leaked the opinion on their own.

The Occam’s razor answer—and the one spreading quickly in conservative media after the leak—is that an angry clerk of one of the progressive justices leaked the opinion to prepare the public for the end of Roe, hoping to potentially galvanize opposition against the decision and to make one last desperate attempt to change one of the five votes to overturn Roe. Again, this was the theory that animated conservative media in the hours after the news, which practically described the leaker as a traitor to the country:

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Laura Ingraham described the leak in her Fox News show in apocalyptic terms. She called it “the end of the court” and argued that Chief Justice John Roberts needed to enlist the FBI to unmask the leaker, with her guests speculating that the person had done it to earn cult-hero status in progressive circles. “This is the worst type of attack you can launch against the integrity of the Supreme Court,” her guest Jonathan Turley said:

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According to this thinking, a progressive clerk would have been so desperate to try to prevent the end of Roe that they would risk their entire professional career on a frantic gambit with virtually no chance of success. It’s possible the person behind the leak bet it would generate enough outrage around the decision to change the outcome in their favor. But if a clerk was really trying to convince a fence-sitter, it seems like this sort of institutional attack on the court would have the opposite effect, convincing any wavering justices in the majority that they should not back down. If this was calculated as a gambit by a clerk, it seems like a poor one. Which brings us to the second possibility.

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[Read: Alito’s Leaked Draft Fully Overruling Roe Is Jaw-Dropping and Unprecedented]

Scenario Two: A conservative justice leaked it, possibly through a clerk.

This isn’t necessarily the likeliest outcome, but of all the options this would seem to me to be the shrewdest tactically. First, it wouldn’t make any sense for a clerk who opposed Roe to leak this without the permission of their boss. It would not only put this person’s career in jeopardy, it would also put at risk a legal victory that conservatives have been working toward for decades.

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However, it would make perfect sense for a conservative justice to leak this opinion, either themselves or through a clerk, if for some reason they thought one of the five votes was still on the fence to pressure that fence-sitter to stay on the team. Even if that vote was not on the fence, a conservative justice leak would make sense in that it might preempt any sort of last-minute squishiness, as Roberts apparently experienced in the Obamacare decision. The message would be: We’ve gone this far, and now all we have to do is the final step. If you back down now, everybody will know that you went soft and you will be a pariah among conservatives even worse than Roberts was after Obamacare.

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In this possibility, the leak would serve other major tactical purposes. It turns attention away from the monumental—and likely to be deeply unpopular—ruling itself, and toward what conservatives are portraying as a dastardly and corrupt breaking of the norms. On her show, for instance, Ingraham complained that “the protesters are enraged at that leaked ruling from Politico tonight regarding Roe v. Wade—they’re outraged not about the leak, they’re outraged about what’s in the decision.” If the attention can be turned to the protesters, and not the ruling overturning Roe in the most forceful terms possible—which polls have consistently showed the public is against—then that is a political victory for those who realize how unpopular the stance is with the general public.

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The leak could also serve the purpose of ripping the Band-Aid off. The possible political pain of the decision might be lessened in this way, because the public has their expectations set for when the ruling is official and it will be treated as a less significant story then. Critically, if a justice leaked this, it’s unlikely to ever come out, as there likely won’t be the sort of investigation that will force justices to divulge anything they don’t want to. Tactically, it would make some sense for a conservative justice to leak this news.

[Read: Roe Will Fall. But the Supreme Court’s Legitimacy Is Already Lost]

Scenario Three: A progressive justice leaked the news.

Consider the reasons for this to be a combination of Scenario One and Scenario Two. A progressive justice might have leaked this knowing it was unlikely for them to be caught—as in Scenario Two—and in order to try to put one last final push of pressure on any potentially wavering justices, as in Scenario One. Again, it does not seem like this would work, but if anyone would be privy to the possibility that another justice might be swayed to change his or her mind about ending Roe by a massive public backlash to this draft opinion, it would be another one of the justices. Perhaps a progressive justice noticed that one of the five in favor of ending Roe was soft and decided this was the last best chance to sway them.

Scenario Four: Chief Justice John Roberts leaked the news.

This seems like the least likely of the four scenarios emerging because of how intensely Roberts has sought to portray himself as the protector of the court’s legitimacy. Still, it’s worth considering. Shortly after the draft opinion itself leaked, CNN also reported the full details of Roberts’ private deliberations on this case. As CNN reported:

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John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from Alito’s draft opinion, sources tell CNN, likely with the court’s three liberals. Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned.

This second leak around Roberts sounds more likely to have come from a justice with insight into his mindset than from a clerk, which would imply that it was potentially a justice who leaked the bigger news. Which leaves the door open for Roberts. Perhaps the chief justice so believes that striking down Roe in this way—and after Republicans in essence stole a seat from President Barack Obama by blockading his Merrick Garland nomination in his final year in office and appointing Amy Coney Barrett in the final months of President Donald Trump’s term—would cast such a pall over the court that it might not recover. In that case, perhaps he would leak the news in an effort to convince one of either Justice Brett Kavanaugh or Justice Barrett to join him in an opinion maintaining Roe in name only, while upholding the Mississippi abortion ban. Again, this seems like the least likely outcome, as the legitimacy of the court has suffered a devastating blow tonight that was not at all helped by the nature of the release of this news—an outcome Roberts surely would have wished to avoid at all costs.

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