I'd add one more reason why the "leak by a conservative Justice" theory seems relatively unlikely: The leak was to Politico. Why would a conservative Justice leak to Politico, of all places? The networks don't line up, it seems to me. Anything is possible, but that theory seems less likely than a lot of others I can think of.
Exactly. It’s all about the networks—which is why I think it’s perfectly plausible that a conservative justice or someone close to such a justice leaked to the famously conservative WSJ editorial page. But to leak an entire draft opinion, to Politico, is a different act, and I think it was done by a different person.
As always, this is just conjecture, not reflecting any inside information. I might be wrong—as I have been countless times over the years.
It really is not useful for you two to "sub-comment" as if there was not a clear explanation of why and how the draft might have gotten to Politico, that Mr. Kerr has reacted to (with disdain).
This faux "I just don't understand" is degrades your reputations for genuine intellectual argument and shows a complete lack of respect to the readers. It just is not true that you "just don't understand". You understand, but do not agree. That is a very different thing.
Mitchell, why the suggestion that we are acting in bad faith? Neither of us have a reason I'm aware of why we would be commenting here in bad faith. We're just trying to assess probabilities as best we can, and we see the world differently than you do. It happens.
it is "bad faith" to start each of your statements with "I just don't understand how . . . " when you understand precisely what people are saying. To be clear, they are not saying that a conservative Justice leaked directly to Politico. They are saying that a conservative (who may be a Justice or a Justice's spouse) leaked to the WSJ Opinion and that WSJ Opinion did not keep control over the draft, such that someone else from WSJ leaked to Politico. You simply blink away that possibility, and argue against a thing that is not being argued.
I do respectfully disagree with your theory, Mitch, which I think is rather convoluted. I think it’s a classic example of overthinking the situation.
But we’ve been around this track before (and I believe we already have a charity bet going on this). So I don’t see much sense in relitigating the issue.
I am genuinely puzzled as to why some on the left care so much about who leaked. On this, I’m with my former colleague Elie Mystal (with whom I don’t often agree). If you are a liberal or progressive who supports abortion rights, isn’t getting worked up over the leak, when tens of millions of people just lost access to safe reproductive healthcare, like complaining about bad food on the Titanic?
I get why conservatives are upset over the leak; they still respect SCOTUS. But folks on the left who are disgusted with the current Court should basically be saying “amen” to the leaker (as some actually did, like Brian Fallon of Demand Justice—a reaction I can understand).
Since you asked, I get worked up about this because I view it as the Right (WSJ Opinion and fellow travelers) doing dirt and then casting the blame on relatively-unempowered SCOTUS clerks. Some of those who clerked for SCOTUS have literally received death threats over this. And yet, you leave up on this comment thread an accusation that names a particular former Breyer clerk as the source.
This time, you should just shut down the defense of the Right. If you want to say it is unknowable, I can go along with that. When you say, it is unknowable, BUT the theory that it was someone on the Right is crazy (which would mean that it was someone on the left), you are feeding into a violent mob.
Great piece. For what it's worth, I do think it's worth thinking about other investigative steps that could have been done and were probably rejected because they would have been controversial and might have had too high a cost.
For example, the Biden administration's policy to not subpoena reporters probably made it easier for the leaker to think they could get away with it. The Marshal also could have asked employees to submit to polygraphs, which would have been controversial but might have been more probative and useful than affidavits.
There is one additional step that I think the Marshal could have done and probably should have done. Since some employees admitted telling their spouses and partners about the opinion, the Marshal could have at least interviewed those people - one of those could have been Politico's source.
This social-media speculation appears to have been as persuasive after a search for actual evidence, as it was before it. Namely, it's possible, but there's zero reason to jump straight to "CASE CLOSED" other than a convenient target of a Two Minutes Hate was named and we must hop to it.
(For what it's worth, I have significantly less respect for the dude who plucked her from the ether and announced her as culprit, doubtless after reviewing his yarn-strewn bulletin board, than I did before I saw his rank speculation.)
David. You know better than this ("An aside: I remain puzzled as to why commentators on the left want to pin this leak on someone from the right.").
The theory on the left, which I ascribe to and have articulated in prior communications with you, is:
1. Someone on the Right (perhaps Virginia Thomas, I'll use the term "SCOTUS Leaker")) leaked the draft opinion to WSJ Opinion Page, so that the arguments could be put forward and the 5 Justices on board would be locked in.
2. There was not expectation by the SCOTUS Leaker that the full text of the decision would be leaked by the WSJ, which would avoid the problems noted by Dan McLaughlin.
3. Someone at the WSJ, appalled by the SCOTUS Leaker and/or the forthcoming Dobbs opinion, leaked the draft to Politico, to bring down the curtain on the charade.
As far as I can tell, the SCOTUS PD has done nothing to investigate this theory. Little wonder, since it would implicate a Justice (or a Justice's spouse), not a relatively-powerless clerk.
In my view, you (and those who asserted that the leaker was a SCOTUS liberal clerk) owe an apology. Because the one thing that we know now is that a thorough investigation of THEM yielded no evidence to support that theory.
I don't understand the evidence that supports any of this, Mitchell. And your claim about "the one thing we know" is false, it seems to me. In contrast to what you say, it was a partial investigation of misconduct; the misconduct is exceedingly difficult to investigate even with the most advanced set of tools; and we don't know there is "no evidence," only that the Marshall feels she doesn't have a preponderance of the evidence as to any one person. It seems to me that we just don't know who did this, and we have to live with the uncertainty, but I share David's ball park sense of the likelihoods. (I also wouldn't be at all surprised if it was no one at the Court or family members of the Court. If Justices and clerks are walking around outside the Court with drafts of Dobbs in their bags, and outsiders know that, it doesn't take much to search a bag, take the draft, and copy it. No investigation would be likely to uncover that.)
I suspect that you know this (since you are a very accomplished and knowledgeable legal author), but since you asked, I will recapitulate.
On April 22, 2022, the WSJ Opinion Page published an editorial entitled "Abortion and the Supreme Court: This is the moment for the Justices to turn the issue over to the voters". The editorial was replete with reporting about an effort by Chief Justice Roberts to peel away one vote from a 5 Justice majority to overrule Roe v. Wade and join him in a separate opinion that would uphold the Mississippi law on narrower grounds. This was NOT public knowledge.
Moreover, the WSJ Editorial was replete with statements about the forthcoming Dobbs decision, which seem to me likely to have been gleaned from an advance copy of the draft.
As noted by Josh Blackmun in his contemporaneous Volokh Conspiracy piece (https://reason.com/volokh/2022/04/27/the-wsj-is-worried-about-the-chief-justice-turning-votes-in-dobbs/), published before the Dobbs draft was published by Politico, "Since Dobbs was argued, I have been waiting for this sort of editorial in the Journal. Indeed, at an event last week, someone asked me about Dobbs. I said something to the effect of, "everything is quiet now, and I haven't seen any evidence of leaks." Now we have evidence. If there are other similar pieces in National Review and related outlets, we can have more faith that knowledge has leaked out. Perhaps I am over-reacting. I've done it before. But the Bostock and NFIB flashbacks are quite strong now. There is still plenty of time between now and the end of June. Indeed, we are somewhat ahead of schedule. The leaks from NFIB began at the end of May."
So, forgive me if I do not credit your statement "I don't understand the evidence that supports any of this." This theory was circulating among SCOTUS-followers before and after Politico published the Dobbs draft.
It certainly is possible that someone rifled through a Justice's gym bag, found a draft of Dobbs, photographed it, and then leaked the draft to Politico -- but you have presented LITERALLY NO EVIDENCE in support of this wild conjecture. I commend you on the Red Herring.
I think it's plausible to guess, as Josh Blackman did, that there was a leak of the initial vote in Dobbs to the WSJ editorial page. But what's the evidence that the WSJ actually had a copy of the draft in its possession? You write: "[T]he WSJ Editorial was replete with statements about the forthcoming Dobbs decision, which seem to me likely to have been gleaned from an advance copy of the draft." What specific statements in the WSJ editorial do you have in mind?
Oh, and as for the evidence for the opinion that outsider access wouldn't surprise me, it's mostly from having been a Supreme Court clerk and worrying about that at the time. But of course I'm not saying that is what happened; I'm just saying it wouldn't surprise me if it happened, and an investigation would uncover no evidence of it happening.
Ah, yes, now is the time to play the "I was a SCOTUS clerk" card. You certainly have credentials far beyond mine. You are brilliant. Certainly smart enough to understand what I am saying -- which makes your "I just don't understand" canard very grating to me.
As for the evidence that WSJ Opinion had a leaked draft:
1. As Mr. Blackman pointed out at the time, there was no reason for the WSJ to suddenly publish on this topic on April 22, 2022. It was long after oral argument (and the preliminary vote). It was, however, likely the time when there was both a draft majority opinion and a draft concurrence by CJ Roberts.
2. The leak to Politico literally occurred just two weeks after the WSJ article (and about one week after Mr. Blackman's Volokh article decrying that the WSJ had likely once again received a leak). Knowing the culture at the WSJ (and particularly the strident disagreements between news v. opinion), it seems highly plausible that someone on the news side got ahold of a leaked copy that WSJ Opinion had and re-leaked it to Politico.
3. Why Politico? Perhaps because it is the intellectual successor to 1980s-era USA Today. It has a reputation for being a down-the-middle outlet. Had the leak gone to The Nation, Daily Kos, MSNBC or even SCOTUSblog, the veracity of the leaked draft might have been more seriously questioned. As it was, Chief Justice Roberts confirmed the authenticity quickly.
I have no doubt that you and David are fully capable of beating me in a fair debate on many topics. It wish that you would engage in a fair debate on this topic, rather than feigning ignorance.
Mitchell, I asked for the statements in the WSJ editorial that seemed to be gleamed from the draft, as you initially claimed. Notably, your response points to nothing in the editorial at all. Anyway, I get that you think we're "feigning ignorance" in bad faith, and that you're reacting to that perception. You are mistaken, though.
What reason, precisely, do you have to suggest "even" SCOTUSblog would have occasioned questions about its veracity? SCOTUSblog is way closer to impartial than any of those other outlets, even if on rare occasion (I'd count both Horne v. Department of Agriculture argument analyses as such, the former a little more subtly, the latter much more unsubtly https://www.scotusblog.com/2013/03/argument-recap-if-only-it-were-simple/https://www.scotusblog.com/2015/04/argument-analysis-imagery-overwhelms-the-facts/ ) it was fairly obvious in one Lyle Denniston writeup or another that he thought one side's argument was ridiculous.
And in any event, the best reason to accept the draft as real wasn't where it was published, but the extent of the document itself, its very SCOTUS-y formatting even accounting for all the little nits fixed in the final opinion, and the dozens of citations you'd have to line up just so in a fraudulent document -- all of which would require a ton of time to fake. And the very stylistically Alito feel to it. I'd have thought that document was real no matter where it was published.
For those who do not know, both Josh Blackman and Orin Kerr write for Volokh Conspiracy. I cannot imagine the world where Mr. Kerr did not contemporaneously read Mr. Blackman's piece, linked above.
The entire cadre of clerks should have been presented the possibility of dismissal en masse. With the benefits of the "shared" elements of this unique - and coveted - experience should also come shared responsibility for egregious disrespect to the institution.
We should ask, 'cui bono?" But not about the so-called "leak." We should ask who benefits from intimidating or seeking to injure the person who help apprise the American public of the draft Dobbs opinion. We should ask why any justice on the U.S. Supreme Court would believe that he or she had good cause (much less actual authority) to intimidate or injure the courageous American who helped apprise Americans of the content of the virtually final and impending Dobbs decision.
To put it another way, what possible legitimate purpose could be served by preventing the American public from learning about and discussing the content of a draft opinion such as the Dobbs draft? The whole reason the Constitution protects federal judges' tenure and compensation is to ensure that their independence and integrity won't be affected by anything other than what judges may consider consistent with the Constitution (due process of law). So why should the Dobbs draft have been kept secret? And who benefits from the pretense that SCOTUS justices (and federal judges) have the power to repress such expression? Certainly not the American public or the U.S. Supreme Court as an institution.
In 2016, SCOTUS essentially unanimously (again) confirmed the unconstitutionality of the Court's own conduct regarding the publication of the Dobbs draft. “Content-based laws” (or court rules or rulings) are “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Precluding or seeking to punish publication of a draft opinion such as the Dobbs draft clearly targeted the content of speech. Cf. id. at 163-64 (identifying types of “content-based” restrictions). Such repression of expression must “be justified only” by “prov[ing] that” it was “narrowly tailored to serve” public “interests” that are “compelling.” Id. at 163. To my knowledge, no one ever even attempted to prove that precluding or punishing the publication of the Dobbs draft served any legitimate public interest, much less a compelling public interest. To my knowledge, no one ever even attempted to prove that seeking to punish or intimidate any Court employee responsible for such publication was narrowly tailored to any legitimate purpose. I'm certain the Court could not bear such burden of proof.
SCOTUS's tactics reeked of an exceedingly rank form of repression of expression that has long since been discredited and discontinued. During a sad, dark period of colonial history, "provincial assemblies" (legislators) invoked so-called "legislative privilege" to "imprison seditious writers for 'contempt,' since the people's representatives were not to be second-guessed for their official actions outside the assembly." Jacob Mchangama, Free Speech: A History from Socrates to Social Media 154 (2022). "In fact, the mere printing of the proceedings and speeches of the assemblies was a punishable breach of the privilege." Id. at 156.
Now, we routinely publish legislators' drafts of and speeches about proposed legislation. But for some bizarre (and clearly unconstitutional) reason, SCOTUS justices continue to pretend that something somewhere gave them the power to conceal a draft of an opinion such as the Dobbs draft from the American public. Why? Cui bono?
I'd add one more reason why the "leak by a conservative Justice" theory seems relatively unlikely: The leak was to Politico. Why would a conservative Justice leak to Politico, of all places? The networks don't line up, it seems to me. Anything is possible, but that theory seems less likely than a lot of others I can think of.
Exactly. It’s all about the networks—which is why I think it’s perfectly plausible that a conservative justice or someone close to such a justice leaked to the famously conservative WSJ editorial page. But to leak an entire draft opinion, to Politico, is a different act, and I think it was done by a different person.
As always, this is just conjecture, not reflecting any inside information. I might be wrong—as I have been countless times over the years.
It really is not useful for you two to "sub-comment" as if there was not a clear explanation of why and how the draft might have gotten to Politico, that Mr. Kerr has reacted to (with disdain).
This faux "I just don't understand" is degrades your reputations for genuine intellectual argument and shows a complete lack of respect to the readers. It just is not true that you "just don't understand". You understand, but do not agree. That is a very different thing.
Mitchell, why the suggestion that we are acting in bad faith? Neither of us have a reason I'm aware of why we would be commenting here in bad faith. We're just trying to assess probabilities as best we can, and we see the world differently than you do. It happens.
it is "bad faith" to start each of your statements with "I just don't understand how . . . " when you understand precisely what people are saying. To be clear, they are not saying that a conservative Justice leaked directly to Politico. They are saying that a conservative (who may be a Justice or a Justice's spouse) leaked to the WSJ Opinion and that WSJ Opinion did not keep control over the draft, such that someone else from WSJ leaked to Politico. You simply blink away that possibility, and argue against a thing that is not being argued.
I do respectfully disagree with your theory, Mitch, which I think is rather convoluted. I think it’s a classic example of overthinking the situation.
But we’ve been around this track before (and I believe we already have a charity bet going on this). So I don’t see much sense in relitigating the issue.
I am genuinely puzzled as to why some on the left care so much about who leaked. On this, I’m with my former colleague Elie Mystal (with whom I don’t often agree). If you are a liberal or progressive who supports abortion rights, isn’t getting worked up over the leak, when tens of millions of people just lost access to safe reproductive healthcare, like complaining about bad food on the Titanic?
I get why conservatives are upset over the leak; they still respect SCOTUS. But folks on the left who are disgusted with the current Court should basically be saying “amen” to the leaker (as some actually did, like Brian Fallon of Demand Justice—a reaction I can understand).
Since you asked, I get worked up about this because I view it as the Right (WSJ Opinion and fellow travelers) doing dirt and then casting the blame on relatively-unempowered SCOTUS clerks. Some of those who clerked for SCOTUS have literally received death threats over this. And yet, you leave up on this comment thread an accusation that names a particular former Breyer clerk as the source.
This time, you should just shut down the defense of the Right. If you want to say it is unknowable, I can go along with that. When you say, it is unknowable, BUT the theory that it was someone on the Right is crazy (which would mean that it was someone on the left), you are feeding into a violent mob.
John LeCarre said it best in his book "The Constant Gardener," writing of a lawyer character that the grave was a chatterbox compared to her.
Great piece. For what it's worth, I do think it's worth thinking about other investigative steps that could have been done and were probably rejected because they would have been controversial and might have had too high a cost.
For example, the Biden administration's policy to not subpoena reporters probably made it easier for the leaker to think they could get away with it. The Marshal also could have asked employees to submit to polygraphs, which would have been controversial but might have been more probative and useful than affidavits.
There is one additional step that I think the Marshal could have done and probably should have done. Since some employees admitted telling their spouses and partners about the opinion, the Marshal could have at least interviewed those people - one of those could have been Politico's source.
The leaker is Elizabeth Deutsch-former Breyer law clerk , ardent Pro-Choice advocate and wife of a Politico reporter-CASE CLOSED
This social-media speculation appears to have been as persuasive after a search for actual evidence, as it was before it. Namely, it's possible, but there's zero reason to jump straight to "CASE CLOSED" other than a convenient target of a Two Minutes Hate was named and we must hop to it.
(For what it's worth, I have significantly less respect for the dude who plucked her from the ether and announced her as culprit, doubtless after reviewing his yarn-strewn bulletin board, than I did before I saw his rank speculation.)
David. You know better than this ("An aside: I remain puzzled as to why commentators on the left want to pin this leak on someone from the right.").
The theory on the left, which I ascribe to and have articulated in prior communications with you, is:
1. Someone on the Right (perhaps Virginia Thomas, I'll use the term "SCOTUS Leaker")) leaked the draft opinion to WSJ Opinion Page, so that the arguments could be put forward and the 5 Justices on board would be locked in.
2. There was not expectation by the SCOTUS Leaker that the full text of the decision would be leaked by the WSJ, which would avoid the problems noted by Dan McLaughlin.
3. Someone at the WSJ, appalled by the SCOTUS Leaker and/or the forthcoming Dobbs opinion, leaked the draft to Politico, to bring down the curtain on the charade.
As far as I can tell, the SCOTUS PD has done nothing to investigate this theory. Little wonder, since it would implicate a Justice (or a Justice's spouse), not a relatively-powerless clerk.
In my view, you (and those who asserted that the leaker was a SCOTUS liberal clerk) owe an apology. Because the one thing that we know now is that a thorough investigation of THEM yielded no evidence to support that theory.
https://youtu.be/t8cE3ZekgCY?t=234
I don't understand the evidence that supports any of this, Mitchell. And your claim about "the one thing we know" is false, it seems to me. In contrast to what you say, it was a partial investigation of misconduct; the misconduct is exceedingly difficult to investigate even with the most advanced set of tools; and we don't know there is "no evidence," only that the Marshall feels she doesn't have a preponderance of the evidence as to any one person. It seems to me that we just don't know who did this, and we have to live with the uncertainty, but I share David's ball park sense of the likelihoods. (I also wouldn't be at all surprised if it was no one at the Court or family members of the Court. If Justices and clerks are walking around outside the Court with drafts of Dobbs in their bags, and outsiders know that, it doesn't take much to search a bag, take the draft, and copy it. No investigation would be likely to uncover that.)
Mr. Kerr,
I suspect that you know this (since you are a very accomplished and knowledgeable legal author), but since you asked, I will recapitulate.
On April 22, 2022, the WSJ Opinion Page published an editorial entitled "Abortion and the Supreme Court: This is the moment for the Justices to turn the issue over to the voters". The editorial was replete with reporting about an effort by Chief Justice Roberts to peel away one vote from a 5 Justice majority to overrule Roe v. Wade and join him in a separate opinion that would uphold the Mississippi law on narrower grounds. This was NOT public knowledge.
Moreover, the WSJ Editorial was replete with statements about the forthcoming Dobbs decision, which seem to me likely to have been gleaned from an advance copy of the draft.
As noted by Josh Blackmun in his contemporaneous Volokh Conspiracy piece (https://reason.com/volokh/2022/04/27/the-wsj-is-worried-about-the-chief-justice-turning-votes-in-dobbs/), published before the Dobbs draft was published by Politico, "Since Dobbs was argued, I have been waiting for this sort of editorial in the Journal. Indeed, at an event last week, someone asked me about Dobbs. I said something to the effect of, "everything is quiet now, and I haven't seen any evidence of leaks." Now we have evidence. If there are other similar pieces in National Review and related outlets, we can have more faith that knowledge has leaked out. Perhaps I am over-reacting. I've done it before. But the Bostock and NFIB flashbacks are quite strong now. There is still plenty of time between now and the end of June. Indeed, we are somewhat ahead of schedule. The leaks from NFIB began at the end of May."
So, forgive me if I do not credit your statement "I don't understand the evidence that supports any of this." This theory was circulating among SCOTUS-followers before and after Politico published the Dobbs draft.
It certainly is possible that someone rifled through a Justice's gym bag, found a draft of Dobbs, photographed it, and then leaked the draft to Politico -- but you have presented LITERALLY NO EVIDENCE in support of this wild conjecture. I commend you on the Red Herring.
I think it's plausible to guess, as Josh Blackman did, that there was a leak of the initial vote in Dobbs to the WSJ editorial page. But what's the evidence that the WSJ actually had a copy of the draft in its possession? You write: "[T]he WSJ Editorial was replete with statements about the forthcoming Dobbs decision, which seem to me likely to have been gleaned from an advance copy of the draft." What specific statements in the WSJ editorial do you have in mind?
Oh, and as for the evidence for the opinion that outsider access wouldn't surprise me, it's mostly from having been a Supreme Court clerk and worrying about that at the time. But of course I'm not saying that is what happened; I'm just saying it wouldn't surprise me if it happened, and an investigation would uncover no evidence of it happening.
Ah, yes, now is the time to play the "I was a SCOTUS clerk" card. You certainly have credentials far beyond mine. You are brilliant. Certainly smart enough to understand what I am saying -- which makes your "I just don't understand" canard very grating to me.
As for the evidence that WSJ Opinion had a leaked draft:
1. As Mr. Blackman pointed out at the time, there was no reason for the WSJ to suddenly publish on this topic on April 22, 2022. It was long after oral argument (and the preliminary vote). It was, however, likely the time when there was both a draft majority opinion and a draft concurrence by CJ Roberts.
2. The leak to Politico literally occurred just two weeks after the WSJ article (and about one week after Mr. Blackman's Volokh article decrying that the WSJ had likely once again received a leak). Knowing the culture at the WSJ (and particularly the strident disagreements between news v. opinion), it seems highly plausible that someone on the news side got ahold of a leaked copy that WSJ Opinion had and re-leaked it to Politico.
3. Why Politico? Perhaps because it is the intellectual successor to 1980s-era USA Today. It has a reputation for being a down-the-middle outlet. Had the leak gone to The Nation, Daily Kos, MSNBC or even SCOTUSblog, the veracity of the leaked draft might have been more seriously questioned. As it was, Chief Justice Roberts confirmed the authenticity quickly.
I have no doubt that you and David are fully capable of beating me in a fair debate on many topics. It wish that you would engage in a fair debate on this topic, rather than feigning ignorance.
Mitchell, I asked for the statements in the WSJ editorial that seemed to be gleamed from the draft, as you initially claimed. Notably, your response points to nothing in the editorial at all. Anyway, I get that you think we're "feigning ignorance" in bad faith, and that you're reacting to that perception. You are mistaken, though.
What reason, precisely, do you have to suggest "even" SCOTUSblog would have occasioned questions about its veracity? SCOTUSblog is way closer to impartial than any of those other outlets, even if on rare occasion (I'd count both Horne v. Department of Agriculture argument analyses as such, the former a little more subtly, the latter much more unsubtly https://www.scotusblog.com/2013/03/argument-recap-if-only-it-were-simple/ https://www.scotusblog.com/2015/04/argument-analysis-imagery-overwhelms-the-facts/ ) it was fairly obvious in one Lyle Denniston writeup or another that he thought one side's argument was ridiculous.
And in any event, the best reason to accept the draft as real wasn't where it was published, but the extent of the document itself, its very SCOTUS-y formatting even accounting for all the little nits fixed in the final opinion, and the dozens of citations you'd have to line up just so in a fraudulent document -- all of which would require a ton of time to fake. And the very stylistically Alito feel to it. I'd have thought that document was real no matter where it was published.
For those who do not know, both Josh Blackman and Orin Kerr write for Volokh Conspiracy. I cannot imagine the world where Mr. Kerr did not contemporaneously read Mr. Blackman's piece, linked above.
The entire cadre of clerks should have been presented the possibility of dismissal en masse. With the benefits of the "shared" elements of this unique - and coveted - experience should also come shared responsibility for egregious disrespect to the institution.
We should ask, 'cui bono?" But not about the so-called "leak." We should ask who benefits from intimidating or seeking to injure the person who help apprise the American public of the draft Dobbs opinion. We should ask why any justice on the U.S. Supreme Court would believe that he or she had good cause (much less actual authority) to intimidate or injure the courageous American who helped apprise Americans of the content of the virtually final and impending Dobbs decision.
To put it another way, what possible legitimate purpose could be served by preventing the American public from learning about and discussing the content of a draft opinion such as the Dobbs draft? The whole reason the Constitution protects federal judges' tenure and compensation is to ensure that their independence and integrity won't be affected by anything other than what judges may consider consistent with the Constitution (due process of law). So why should the Dobbs draft have been kept secret? And who benefits from the pretense that SCOTUS justices (and federal judges) have the power to repress such expression? Certainly not the American public or the U.S. Supreme Court as an institution.
In 2016, SCOTUS essentially unanimously (again) confirmed the unconstitutionality of the Court's own conduct regarding the publication of the Dobbs draft. “Content-based laws” (or court rules or rulings) are “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Precluding or seeking to punish publication of a draft opinion such as the Dobbs draft clearly targeted the content of speech. Cf. id. at 163-64 (identifying types of “content-based” restrictions). Such repression of expression must “be justified only” by “prov[ing] that” it was “narrowly tailored to serve” public “interests” that are “compelling.” Id. at 163. To my knowledge, no one ever even attempted to prove that precluding or punishing the publication of the Dobbs draft served any legitimate public interest, much less a compelling public interest. To my knowledge, no one ever even attempted to prove that seeking to punish or intimidate any Court employee responsible for such publication was narrowly tailored to any legitimate purpose. I'm certain the Court could not bear such burden of proof.
SCOTUS's tactics reeked of an exceedingly rank form of repression of expression that has long since been discredited and discontinued. During a sad, dark period of colonial history, "provincial assemblies" (legislators) invoked so-called "legislative privilege" to "imprison seditious writers for 'contempt,' since the people's representatives were not to be second-guessed for their official actions outside the assembly." Jacob Mchangama, Free Speech: A History from Socrates to Social Media 154 (2022). "In fact, the mere printing of the proceedings and speeches of the assemblies was a punishable breach of the privilege." Id. at 156.
Now, we routinely publish legislators' drafts of and speeches about proposed legislation. But for some bizarre (and clearly unconstitutional) reason, SCOTUS justices continue to pretend that something somewhere gave them the power to conceal a draft of an opinion such as the Dobbs draft from the American public. Why? Cui bono?