Tuesday Talk*: Leaker, Hero or Villain?

Some prawfs noted that there was a leaked decision in 1919 by a Supreme Court clerk given to some Wall Street speculators so they could use the advance information to make a killing in the market. But the idea of someone within the Supreme Court leaking a draft decision is shocking. This doesn’t happen. This is an exceptional violation of trust. This would have been unthinkable a few years ago, but that was before people assumed the duty to save humanity by violating rules and norms and becoming a hero.

Was the leaker a hero, or was the leaker a villain?

So whodunnit? I can think of three possible answers.

First, this leak may have come from the chambers of a liberal Justice. Under this theory, the leak was designed to create a backlash, and pressure a conservative Justice to defect from Alito’s opinion. But this theory makes no sense. If anything, this leak from a liberal chamber will entrench the five-member majority to avoid the appearance that the pressure campaign worked.

Second, this leak may have come from the chambers of a conservative Justice. Under this theory, the leak was designed to prevent a conservative Justice from defecting from Alito’s opinion. But this theory also makes no sense. If anything, this leak from a conservative chamber would infuriate a swing Justice, and push them out.

Any clerk must know that this sort of leak would ruin their careers, and possible disbarment or criminal prosecution. And a Justice must know that authorizing this leak would probably lead to impeachment proceedings. I do not think this leak came from a chambers.

There is a third option: the leak did not come from a chambers. I hinted at that theory in my initial post.  Rather, the leak may have come from someone with access to the Supreme Court’s draft opinions. And history suggest that this sort of leak is possible.

There is a difference between a clerk violating the confidence of chambers because a decision conflicts with their personal views, or as a cynical manipulation of justices’ votes, and a leak that comes from someone outside chambers. Or does it not matter?

Whoever leaked this has changed the course of a nation, perhaps rightfully or perhaps not. What if it turns out that this first draft doesn’t end up as the Supreme Court’s holding, and yet it’s now out there, doing the damage, nonetheless? There will no doubt be an investigation, and there are certainly clues as to the identity of the leaker which may eventually clarify what this was about. But will it matter by then?

In the meantime, whoever leaked this draft has at absolute minimum changed the course of events in American politics. Is that the act of a hero or villain, or does that characterization depend on whether you agree or disagree with the leak?

*Tuesday Talk rules apply.

37 thoughts on “Tuesday Talk*: Leaker, Hero or Villain?

  1. LDA

    There’s another reason why a conservative justice (or staff) may have leaked it: to alert state legislatures to start the process of passing bills outlawing abortion so that the bills may be voted upon immediately after the decision is published. I’m not saying that happened – I’m saying it’s a possibility.

        1. Elpey P.

          Or by somebody who wants the democrats to take decisive action in the small window of opportunity they have left.

          Or by a deep state cabal to fortify partisan boundaries and manufacture media revenues.

          Or by somebody who wants to troll the social justice crowd into making a frenzy of “transphobic” characterizations to further muddy the gender debate.

          Or by Johnny from Airplane! just because that’s our politics and media now and we never learn.

          So many Schrodinger heroes and villains.

          1. JMK

            >Or by somebody who wants the democrats to take decisive action in the small window of opportunity they have left.

            This seems (to me) the most likely probability. The current polling is (well, was before today) that November was going to be pretty bad for the incumbent party, and there is now an impetus–the thing that many (including three of the justices whose names are on this draft) said was not going to happen–to throw more norms away, remove the filibuster, and pack the court while the opportunity is available.

            If it were to influence the coming election directly, the timing is fairly poor (unless there are some key primary races this could influence?) If it were to “prime state legislatures” that’s entirely unnecessary, they’ve been primed for years already and have been passing laws regardless of Roe’s existence.

            But putting this in front of Congress now, before summer recesses and election season? That’s plausible.

  2. Howl

    At the risk of unintentionally spreading stupid, could it be that the supposed leak is a fake?
    All I know for sure is,

  3. Law Clerk

    I have worked in the biglaw space for more than a couple decades and the caliber of talent (not to mention the way new lawyers behave / think) has radically changed in ways I would have thought unfathomable when I began. Some years ago, an associate mentioned, off-handedly, that they were uncomfortable working on a particular team because the company [client] had a subsidiary that also owned a gun manufacturer and they had ideological problems representing them.

    Is it possible that zealotry by ideological law clerks is now more powerful than institutional norms at SCOTUS — to the point they felt duty-bound to leak this? I would have said never years ago. Now, I’m not nearly as certain.

    Then again, maybe it was Putin writing it and leaking it to Politico. Sadly, I’m not sure which option would have seemed more outlandish if you asked me last week.

    What a brave new world.

    1. SHG Post author

      Whether this was a clerk leak or not remains to be seen, but the problem you raise is one that’s been deeply troubling for a while now. Many young lawyers believe that they’re participants in a battle between good and evil (which they get to decide), rather than detached representatives serving a necessary function in our constitutional system. This will be a fiasco.

    2. Cynthia Garrett

      Exactly my reaction and for the precise reason both of you have cited: “zealotry by ideological law clerks” who believe they have a moral duty to do the unthinkable.

    3. Rengit

      BigLaw hires from HYS and the other elite schools that we’ve seen so much madness from in the past couple years, often with the support of the administration and/or significant contingents of the faculty. And the federal appeals courts and SCOTUS draw almost exclusively from these schools too for clerkships. It was inevitable that the way schools have been treating students would start showing up in young lawyers and law clerks refusing to let professional norms, and even laws, get in the way of personal beliefs and ideologies.

      Maybe it’s time for firms and courts to start looking for other feeders.

  4. B. McLeod

    More fallout from the fanatic, at-all-costs mentality that has come to characterize lawfare in this country. Whomever it turns out to be, the other tribe can be expected to reciprocate in the future.

    1. j a higginbotham

      Escalate instead of reciprocate? Justice Ruth Bader Ginsburg told the BBC the true symbol of the United States is the pendulum. But natural pendulums have inherent damping; political swings seem to get larger.

  5. David Meyer-Lindenberg

    Josh is a smart guy, but this argument of his is… interesting. A left-wing clerk couldn’t have done it, because it’d help the right wing. But a right-wing clerk also couldn’t have done it, because it’d help the left wing? So if both these premises are true, whom does it help?

    Is he trying to say it definitely helped both the left and right wing in equal measure? If so, then yeah, probably no clerk risked his career doing it. But if there’s a chance it benefited one wing more than the other, then what’s to stop some clerk from having done a risk calculus and concluded it’s worth it?

    1. David F

      That was my first thought also, it made no sense; but in context, I think he was assuming that the identity of the leaker will be found out, and that will determine the reaction and who it “helps”.

      Oh, and villain. I can think of hypotheticals in which there would at least be arguable genuine moral urgency to leaking something ahead of it being public, even though in violation of one’s duty, but this ain’t it.

          1. $.02

            If you would just give us a “like” button, it would save a lot of giggling in the background, for those of us that remember things.

  6. SamS

    There is another possiblity: it was not a leak but a hack. Someone or some group broke into the court’s computer, stole the brief and then passed it to Politico.

    1. leonard

      A leak seems more plausible, it’s easy to envision and requires one person acting alone.

      A hack seems more complex, it’s a government system with some claim to competence, and with a multilayered defense.

      (Still, I can’t help but wish, for additional drama’s sake, it had been a hack and first published on the blockchain (with an NFT), then you’d have hackers racing both to find out and obscure who the hacker was)

      1. Dan

        I’ve dealt with Government IT for the last several years, as I’m a Government employee. I wouldn’t make any claim to their competence.

  7. Brian Cowles

    Why do we have to immediately lionize or demonize the leaker? Leaking isn’t inherently good or bad*, so the fact that something was leaked does not make the leaker good or evil, just a leaker. I need to know the leaker’s intentions and the consequences of the leak before I know whether to laud or condemn the leak, neither of which is known at this time.

    Also, just because I can’t fathom a situation in which leaking this was justified, doesn’t mean one didn’t exist. A failure of my imagination is not grounds to condemn someone else before any of the salient facts are known.

    * The argument can be made, and I would likely agree, that leaking is presumptively bad, but that’s not the same thing.

    1. David

      The leaker’s intentions? So violating the duty of loyalty and confidentiality is cool as long as the person doing so meant well? The salient facts are completely known here, none of them having anything to do with the leaker’s feelings. Sheesh.

      1. SHG Post author

        The salient facts are clear in this instance. A draft opinion was leaked on an extremely controversial issue. Neither the leaker’s intent nor consequences have anything to do with the propriety of leaking a draft opinion.

  8. MarkHu

    For me the answer is hero.
    Is there even a good reason for these in chambers discussions to be secret? These are important issues transparancy on how these issues are decided will give renewed faith.

    Put a camera right in the middle.

      1. MarkHu

        Does every point that was made during the process of deliberation make it to the opinion? There could be nuggets in there for future cases.

        Also there was the ACA case where Roberts (according to rumours) switched at the last moment. If we could have followed the whole process it might make sense to people that have questions.

        But my main question is why should it be secret, if the government does anything it should be public unless there is a valid reason for it not to be. But the burden should be on the government to show why it should be a secret.

        1. David

          This is exactly why transparency is absolutely wrong for the court. They need to be able to discuss cases freely and frankly. They need to be able to change their minds. There is no “nugget” other than the ultimate decision. This reflects a complete misapprehension of how the court is supposed to work.

    1. Rengit

      Why not require the Justices to wear body cameras at all times? That they can’t turn off? They might discuss case drafts or potential votes with each other on the phone while having dinner.

  9. PK

    The leaker is a villain who should be put in the stockades and have rotten fruit thrown at them or something equally shameful and embarrassing because they shouldn’t have done this under any circumstances. There’s no right to see drafts of opinions, we get the final thing and that’s it. As horrified as I am of the contents of the leak, there’s no question it should not have happened.

  10. F. Lee Billy

    This fiasco further demonstrates the continuing absurdity of our so-called supreme court. Furthermore, my dear Watson, the nominating and confirmation process has devolved into a circus cum casino at least since Clarence “Hi-Tech Lynching” Thomas.

    We’ve experienced some federal absurdities and assorted legalistic mumbo-jumbo decisions personally. Court decisions should not be written for the legal establishment only. Ordinary citizens of average intelligence should be able to read and comprehend decisions and sub rosa legalistic maneuvers. This is currently a rarity, IMO.

    The state courts are no shining lights of legal jurisprudence either. Our whole judicial branch is hopelessly archaic, chaotic and unreliable. Nothing demonstrates this better than this current leak of Alito’s draft (Which I refuse to read–without substantial compensation. Am simpley not interested.)

    One thing is for sure: Irregardless of the final outcome, women will continue seeking, and receive, “reproductive health” services which they so richly deserved. Here at BB Headquarters, we applaud the leak; Nina Totenberg-breath.

Comments are closed.