Or, the leaker was the spouse of a Supreme Court justice, who leaked the draft to the WSJ opinion page -- and someone with a conscience at the WSJ opinion page leaked the document to Politico, rather than allowing the WSJ opinion page to drip, drip, drip the substance of the draft in an attempt to keep the five Justices who were currently signed on to ending abortion rights on the opinion.
I'm with you -- I think the initial leak was to the WSJ (which they reported on), with the draft given on background. Then, someone at WSJ leaked the draft from there. It is then possible that the WSJ leaker and the SCOTUS leaker had different motivations! Otherwise, I feel that we are facing two SCOTUS leakers -- which seems excessive.
For some humdrum case, the idea of two leakers would be a bit silly.
For this case, and this question, the idea of two leakers doesn't seem at all crazy to me. No more than the leaking of a full draft opinion really did, when it happened. Yes, it was a shocking deviation from the norm. But for *this* issue, this question? A question that has poisoned the Supreme Court as an issue for forty-odd years? No, the idea of the gloves coming off, to that degree (or in some other manner of similar import), was not really, truly, deeply surprising when it did happen.
Besides which, the degrees of the (hypothetical) two leaks are highly different.
The sorts of hints from behind the scenes that WSJ mentioned, are of a completely different variety and character than the leaking of a full draft opinion. There are indications that leaks of the former sort happened in NFIB v. Sebelius, occasioning some speechifying and veiled threats from people on the left that may have had the effect of swinging the Chief Justice. It's rare, but there's some history of these sorts of inklings getting out from time to time.
But a full draft opinion? Never. Even the original Roe opinion, in its final form, was only leaked basically morning-of (and so wasn't a draft).
It's not difficult to imagine inklings getting out. It's happened before. Promises of confidence notwithstanding, it's imaginable someone in a position of trust might view it as not so great a breach to reveal a little wobbling. But literal work product, that will very clearly poison future work on it, is an entirely different degree of transgression. And I can imagine many people being willing to bend the rules for the former, but far far fewer to shatter them for the latter. And I don't see a need to tie the two into a single person here.
Jul 26, 2022·edited Jul 26, 2022Liked by David Lat
Halfway through reading this post, I started wondering when we might expect your next book! (Also, para 11 is quite the interesting thought…authentication through experts *with* the NDA. Love that!) As for the rest of your theory, based on this new CNN reporting, I think you’re right. I think The Leaker knew exactly how to leak. (But I also still think a certain judicial spouse is a possibility bc of her penchant, it seems, for stirring up trouble…)
Politico is quite political in a general sort of way, if not in the party political sense. Staff of Axel Springer, the German publishing house which bought it in 2021, have to sign up to what the company calls the Essentials (explained in the article above), eg, pro-Israel, free market economics, a united Europe etc. I don't know if they apply to US staff yet, but I think I remember Mathias Dopfner, the CEO, saying, at the time of the takeover, saying that US staff would be expected to adhere.
By the way, definitely not accusing any Politico journalist of anything, one way or the other. Just pointing out where the company that owns it stands.
Or, the leaker was the spouse of a Supreme Court justice, who leaked the draft to the WSJ opinion page -- and someone with a conscience at the WSJ opinion page leaked the document to Politico, rather than allowing the WSJ opinion page to drip, drip, drip the substance of the draft in an attempt to keep the five Justices who were currently signed on to ending abortion rights on the opinion.
I'm with you -- I think the initial leak was to the WSJ (which they reported on), with the draft given on background. Then, someone at WSJ leaked the draft from there. It is then possible that the WSJ leaker and the SCOTUS leaker had different motivations! Otherwise, I feel that we are facing two SCOTUS leakers -- which seems excessive.
For some humdrum case, the idea of two leakers would be a bit silly.
For this case, and this question, the idea of two leakers doesn't seem at all crazy to me. No more than the leaking of a full draft opinion really did, when it happened. Yes, it was a shocking deviation from the norm. But for *this* issue, this question? A question that has poisoned the Supreme Court as an issue for forty-odd years? No, the idea of the gloves coming off, to that degree (or in some other manner of similar import), was not really, truly, deeply surprising when it did happen.
Besides which, the degrees of the (hypothetical) two leaks are highly different.
The sorts of hints from behind the scenes that WSJ mentioned, are of a completely different variety and character than the leaking of a full draft opinion. There are indications that leaks of the former sort happened in NFIB v. Sebelius, occasioning some speechifying and veiled threats from people on the left that may have had the effect of swinging the Chief Justice. It's rare, but there's some history of these sorts of inklings getting out from time to time.
But a full draft opinion? Never. Even the original Roe opinion, in its final form, was only leaked basically morning-of (and so wasn't a draft).
It's not difficult to imagine inklings getting out. It's happened before. Promises of confidence notwithstanding, it's imaginable someone in a position of trust might view it as not so great a breach to reveal a little wobbling. But literal work product, that will very clearly poison future work on it, is an entirely different degree of transgression. And I can imagine many people being willing to bend the rules for the former, but far far fewer to shatter them for the latter. And I don't see a need to tie the two into a single person here.
I agree completely (and I've previously floated my theories as to who might have leaked to the WSJ and who might have leaked the entire opinion).
Halfway through reading this post, I started wondering when we might expect your next book! (Also, para 11 is quite the interesting thought…authentication through experts *with* the NDA. Love that!) As for the rest of your theory, based on this new CNN reporting, I think you’re right. I think The Leaker knew exactly how to leak. (But I also still think a certain judicial spouse is a possibility bc of her penchant, it seems, for stirring up trouble…)
If the leaker were a Justice, in your view would this be an impeachable offense?
Yes.
Politico is not ideological? Their basically a house organ for the Democratic Party.
I have always found Politico to be much more analytical/horse-race-ish, and occasionally gossipy (in a good way), rather than ideological.
Is Politico any "worse," in your view, than the New York Times, Washington Post, or CNN?
In other words, if you wanted to leak to an outlet that wouldn't be criticized as either left or right, whom would you pick if not Politico?
https://www.tabletmag.com/sections/news/articles/doepfner-axel-springer-politico-james-kirchick
Politico is quite political in a general sort of way, if not in the party political sense. Staff of Axel Springer, the German publishing house which bought it in 2021, have to sign up to what the company calls the Essentials (explained in the article above), eg, pro-Israel, free market economics, a united Europe etc. I don't know if they apply to US staff yet, but I think I remember Mathias Dopfner, the CEO, saying, at the time of the takeover, saying that US staff would be expected to adhere.
By the way, definitely not accusing any Politico journalist of anything, one way or the other. Just pointing out where the company that owns it stands.
I would agree compared to CNN or the NYT it is relatively apolitical.
Was your work on Real Clear Politics a couple of days ago?
I don't believe so, but my law-school stories have appeared on Real Clear Education.
I really enjoy your Substack
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