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.
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.
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.
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?
The Supreme Court Speaks On The Big Dobbs Leak
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.
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
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
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?