Jurisprudence

The Biggest Mystery of the SCOTUS Leak Isn’t “Who Did It?”

Associate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021 in Washington, DC.
Clarence Thomas in Washington in October. Drew Angerer/Getty Images

There are actually three mysteries surrounding the leak of a draft opinion that stands to overturn Roe v. Wade from a notoriously leak-proof Supreme Court. The first mystery, of course, is the much-discussed and debated whodunnit. The second is the related speculation around why such a galactic infraction of the courts norms around secrecy occurred. But to my mind, the biggest mystery of all is why some of the current justices—with broad latitude to mitigate the institutional rupture as a result of the leak—have opted to make it worse. The real, enduring question is why the nine people who could have calmed the situation have instead, in many cases, opted to exacerbate it.

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Consider that the leak was, first and foremost, a broadside against the court’s own legitimacy; the story it whispers to schoolchildren about comity and decency and rising above the rancor. Gone. Maybe that shattering of illusions was long overdue. But nobody knows better than the members of the current court that shattered illusions hamper the court’s ability to function, both internally and as an institution.

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Consider also the deep weirdness around the reporting from January that Chief Justice John Roberts had allegedly asked, “in some form,” for the justices to wear masks and that Justice Neil Gorsuch declined and Justice Sonia Sotomayor had to participate in sessions remotely. That entire drama, with its junior-high whisper campaign, ended with a bizarre joint statement from Gorsuch and Sotomayor pinkie-swearing that they were good friends, and later a more bizarre statement from the chief justice claiming that he never asked anyone to mask on the bench. Putting aside the silliness of the entire episode (and man, it was ridiculous), what was indisputable was the extent to which, as Joan Biskupic put it at the time on CNN, the long-standing norm at the high court around leaks was that “regardless of tensions among the nine, they will close ranks, particularly against the press.”

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That hasn’t happened around the Dobbs leak. You might have expected the court to rally around its own institutional legitimacy, waving the flag of mutual bipartisan adulation and mutual affection and regard. The justices could have followed the lead of Roberts, who expressed horror at the leak and pledged that it would not interfere with the court’s work. Indeed, he promised us that it would change nothing: “To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed,” he said. “The work of the Court will not be affected in any way.” But the justices themselves have speedily shown that the work of the court has, in fact, already changed.

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[Read: The People Who Promised Roe Was Safe Are Already Selling Their Next Bridge]

The reality is even before the draft opinion was leaked to Politico, the Wall Street Journal’s editorial board had either heard insider information about the deliberations in Dobbs or somehow made an awfully good guess that Samuel Alito was its author. That would have been the first leak, if it happened. Then came Politicos thunderclap on May 2, publishing the draft opinion in full. Depending on how you choose to count your leaks, five days after the original Politico story, there was another leak, when on May 7, the Washington Post reported on more private deliberations in Dobbs, confirming that the chief justice wanted to push for a “moderate” position upholding Mississippi’s 15-week ban while leaving Roe to stand as a shell of precedent. But that project had no takers, and “the majority of five justices to strike Roe remains intact.”

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Politico came forward the following week with a new, more detailed report of the status quo in terms of Dobbs deliberations right now: There was only a single draft circulated, Alito’s February version, and “none of the conservative justices who initially sided with Alito have, to date, switched their votes.” In the face of the first damaging leak to Politico, somebody’s solution was to … leak to Politico. Best of all, Politico included a quote, linking the deliberations in Dobbs to Roberts’ controversial defection in the 2012 Affordable Care Act case, in which he was reported to have switched his vote at the last minute and thrown in with the liberals to uphold Obamacare. Quoting “an attorney close to several conservative justices,” the speaker warned: “There is a price to be paid for what he did. Everybody remembers it.”

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Friends, I give you peak Tony Soprano. That same Politico piece also quoted Curt Levey of FreedomWorks Foundation and the Committee for Justice, explaining that Roberts’ loss of the court was inevitable and not something “he could have done anything about.” Why? Said Levey: “Part of it is who he’s alienated on the court.”

The best way to understand the leaks to the Wall Street Journal and to Politico and to the Washington Post is that they are probably not about “us,” the public, at all. As was the case with the leaks around the ACA case in 2012, this is justices or their clerks (and it was almost universally agreed that it was a conservative Justice or his clerks) using the press to talk to one another. These are warning shots, ransom notes, and public tantrums being used by insiders at the court to cudgel other members of this allegedly warm fraternal collective into changing their behavior. So, you can call them leaks, sure. Or you can just call them judicial obedience school.

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[Read: The Supreme Court’s Legitimacy Is Already Lost]

That brings us to Justice Clarence Thomas’ remarks last Friday at a conference sponsored by three conservative think tanks. And oh, the opinions he opined! Asked about the deep friendships and regard for one another at the court, Thomas replied, “Well, I’m just worried about keeping it at the court now.” He unfavorably compared the current court to the ”fabulous court” under Chief Justice William H. Rehnquist, naming the justices he liked in that era.  “This is not the court of that era,” Justice Thomas said, adding: “We actually trusted each other. We may have been a dysfunctional family, but we were a family.”

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Or as the Politico formulation would say of John Roberts: “There is a price to be paid for what he did. Everybody remembers it.”

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Thomas described peaceful abortion protesters outside the justices homes as aberrant leftists. “You would never visit Supreme Court justices’ houses when things didn’t go our way,” Thomas said. “We didn’t throw temper tantrums.” Asked whether conservatives were living up to the “mantra” of civility in politics, he said: “They’ve never trashed a Supreme Court nominee. The most they can point to is Garland did not get a hearing, but he was not trashed.” He mused about the ostensible “Biden rule” about Senate hearings for Supreme Court nominees during the last year of a presidential term. And of stare decisis, of respect for precedent, he said it means justices are just “out of arguments,” and “just waving the white flag.”

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Thomas took a moment to lament the destruction of institutions: “I wonder how long we’re going to have these institutions at the rate we’re undermining them. … And then I wonder, when they’re gone or destabilized, what we’re going to have as a country.” Oddly, he seemed incapable of understanding that these institutions don’t actually undermine themselves and that he is taking a torch to the court’s legitimacy with every clever partisan snipe.

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Of course, Thomas, like so many of his colleagues, doesn’t need to assess his own conduct so long as there are reporters to blame for one’s own behavior. Last Friday was no exception: “One of the things I’d say in response to the media is when they talk about, especially early on, about the way I did my job, I said, ‘I will absolutely leave the court when I do my job as poorly as you do yours. ’ ”

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Get it? Shoot the messenger. Hilarious, every time.

Thomas’ wife, it should be said, was emailing Arizona legislators asking them to set aside the 2020 election results, the Washington Post reported Friday. In addition to the fact that nothing will be done about this, know that the press, and not the justices, will be deemed at fault for it.

All these words about decline in trust for the court, by the way, are being spoken as the court’s public approval numbers continue to plummet and as enthusiasm for serious court reform measures like term limits gain salience and traction. All this, as the public finds itself wondering why, despite undisputed evidence that Thomas’ wife wanted to try the Biden family on barges outside Guantánamo, he didn’t recuse from a Jan. 6 case. Faced with the opportunity to do any number of things to signal ethical seriousness or regard for the Institution, the choice seems to be to go in for the kill shot instead.

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Thomas understands, I believe, that when he dumps all over the chief justice, or the current members of the court, or all liberal protesters, he is polarizing and undermining. He is destroying the reputation of the court as a neutral institution that operates above political partisanship. So does whoever leaked the Dobbs draft. So does whoever offered more leaks in the wake of the Dobbs draft. So does every justice who agrees to speak at a partisan political event in the present moment. This is the opposite of shoring up the court’s prestige. Any justice, any leader, any leaker, and any public figure who genuinely worries about “how long we’re going to have these institutions at the rate we’re undermining them” doesn’t pick up a shovel to joyfully begin digging at the same time.

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And yet they do. And so the real underlying mystery of the Dobbs leaks, and the speeches that followed? They stand as irrefutable proof that despite the chief justice’s best efforts, despite the justices’ own rhetoric to the contrary, some of the members of the current court actually prefer airing grievances and scoring points in public, and in the press, to bolstering their own fading authority. But if the court can’t be bothered to fight for its own legitimacy, it’s hardly a surprise that there will soon be nothing left to protect.

Read more of Slate’s coverage on abortion rights here.

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