People forget that when the Court let Dobbs in, it wasn’t clear if the cert was viable. The justices passed on whether to grant it numerous times before finally pulling the trigger. It was only the onboarding of Amy Coney Barret (ACB), people thought, that provided the fourth vote. And when they did let Dobbs in, the case was restricted to one very limited question, not the grandiose machinations of zealots. Take a look at the grant.
But once it did get in, all hell broke loose. The lawyers argued to toss Roe out completely. The other side fed the opposite flames: Mississippi can’t win unless you overturn Roe, they boasted.[1] The Chief, however, had a less bombastic take. Look, he said, only 15 weeks is on the table.[2] Judicial minimalism is still what counts around here.
And then the leaks happened. Because all Watergate stories come to us in a disheveled fashion, we need to forget about the dates of the leaked stories and focus instead upon what each nugget adds to the pile of information. If we put all of the reporting from Politico, The Wall Street Journal (WSJ) and Washington Post (WaPo) together, and reconstruct it, what does it say?
You have to begin at the initial conference in December. This is where “a single person close to the Court’s most conservative members” (Alito/Thomas) had blabbed about what happened at the meeting.[3] Roberts told all the justices at the conference that he was going to uphold both Mississippi and Roe/Casey, “for now,” this sole person, who we shall call X, was telling the reporters. And as X understood things, the other conservatives in the room wanted those precedents overturned. And so if the insider who fed this blabbermouth was, in fact, an Alito/Thomas person, this would constitute the social perception coming from that camp in mid December after the meeting. And of course we know that Alito got the start at quarterback, penning the majority opinion, which could only happen under weird circumstances.[4]
Now fast forward to April. An editorial in the WSJ seems to know not only that Alito has become the Roe quarterback (before that got leaked), but that the Chief may be trying to flip people. The writers end up morally encouraging the Chief to fail.[5] This is the same month that the Court had four (4) in-person conferences. If any of this info had been leaked to the editorial writers, it would be from one who knew of the authorship, was blind to certain things in the Roberts orbit, and who blabs – which, coincidentally, is our exact profile of X.
And now we get to the Politico journalists. They also happened to find a sole, single blabbermouth who was being told stuff about the deliberations. Politico described this person as someone “familiar with the deliberations,”[6] which means not having direct knowledge, but being talked to by an insider. And what does this blabbermouth say to the reporters? That the line-up hasn’t yet changed by the end of April; that Democrat justices are working on dissents, but the person doesn’t know how many; and that there is mystery revolving around Roberts. So here we are again: the Court appears to have an insider, who is less connected to Democrats, unsure of what Roberts is doing – who then talks to a blabbermouth.
One week later, WaPo happened to find three conservatives who were “close to the Court,”[7] meaning not in a position to be familiar with deliberations, but just conservative chums I guess. These people were apparently told stuff from people who are being told stuff. You’ve got to love networks. What did these three amigos say? They, too, heard that no change in the conference lineup existed as of the end of April. And one wonders if the chums heard it from X, our blabbermouth.
And now the kicker. On May 11th, one day before a key justice conference, Politico learned that no other draft opinions, including any Democrat dissents, or any concurrence, had yet been “circulated.” And that it was still unclear what Roberts would do. But this time, Politico doesn’t say where they got this update from. They just say they learned it.[8]
But knowing, as a fact, that nothing else got circulated for all these months is huge. It tells us several things. First, it tells us that the leaked Dobbs opinion was in fact the only work product that had ever been in circulation all the way through to the first week of May. And this is true all while the Court’s insider who is talking to X, the blabbermouth, is worried about what Roberts is up to, whether flipping might be happening, and how the Democrats are probably off in some room dissenting somewhere.
And as to the February 10th opinion that got leaked as late as May, Politico says it came not from someone “familiar with the deliberations,” i.e., the blabbermouth, but rather from someone “familiar with the Dobbs proceeding.”[9] Wait, wait — aren’t we all familiar with that proceeding? Was that just sand thrown in my face? This seems like an overly vague identifier for someone otherwise having extremely specific-enough access to a file copy of the only officially circulated work product. Politico was so sensitive about this leak that they put a national security journalist on the byline and put super strict protocols in place that kept even their own staffers from learning about this shit.
And so here is our conclusion. What likely happened is that the Court’s immune system began informally circulating another work product – let us call it Q for our Biblical studies friends – which was devised by the adults on the Court who had no choice but to reply to Alito’s dogma. Alito and his people had drafted a 98 page Federalist Society Opinion that drove away colleagues who never really voted for that sort of full-throated revolution in mid December anyway.
And that is why the Court had to issue a press release that, if you read closely, pronounced these five premises: (1) Alito’s circulating of this type of thing is routine; (2) Alito’s draft is not the Court’s decision or the final position of any member (emphasis supplied); (3) this is a betrayal of confidence meant to undermine the integrity of how we work (and it won’t change anything); (4) Our employees are loyal (confidence is our tradition); and (5) this breach of trust threatens not just the Court, but its employees. Keep in mind that this press release addressed the leak of the opinion, not the verbal leaks of the blabbermouth. Without the document going out, this story sort of gets lost behind the Johnny Depp thing.
And so, wow. I don’t know how your read-between-the-lines detector works, but my instrumentalities are saying that this interesting little problem on the Court is coming from inside the nest. And it’s the zealots who caused the problem. All that the normal conservatives ever wanted to do in December was to do what normal conservatives should want to do: get viability gone as the demarcation. They want 4th and 5th month abortions ethically touchable by conservative democratic polities in the US, like Mississippi. Big deal.
But to the zealots, “overruling Roe” meant much more. It meant the revolution of the diatribe, where Alito gets installed as the starting quarterback. And once his first draft circulated, which was met with radio silence in a month with 4 meetings, X started hearing the kind of stuff that is heard when rejection is felt. And so out came not only a narrative about what the Five really want, but an opinion itself which had already become irrelevant when it was released in May.
And this also reconciles why, as early as April 5th, ACB was telling people at a public event to “read the opinion” if they feared politics was the issue.[10] It’s like she was daring them. We only do what the constitution and precedent tells us, she said point blank. The opinion would show this legitimacy. The opinion won’t be a diatribe, she reassured.
And now after the all important conference of the May 12th, things seem to be very much normal again. We have radio silence. Blabbermouth seems to be gone, and so, I’m guessing, is the Alito majority opinion.
[1] See Page 4 of the leaked Alito draft: Letting the Mississippi law stand “would be no different than overruling Casey and Roe entirely,” citing the Brief for Respondents at 43.
[2] “CHIEF JUSTICE ROBERTS: Well, I know, but I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability. It is the standard that the vast majority of other countries have.” P.54, oral argument transcript.
[3] WaPo. “A person close to the court’s most conservative members said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now. But the other conservatives were more interested in an opinion that overturned the precedents, the person said.”
[4] If Roberts was in the majority, he would not assign it to Alito. Everyone assumes it went to Thomas, who passed it to Alito.
[5] “If [Roberts] pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment. The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now. We hope he doesn’t succeed—for the good of the Court and the country. … In Dobbs the Court can say that such a profound moral question should be decided by the people, not by nine unelected judges.”
[6] “A person familiar with the court’s deliberations said that four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.” https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473
[7] “But as of last week, the five-member majority to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter.” https://www.washingtonpost.com/politics/2022/05/07/supreme-court-abortion-roe-roberts-alito/
[8] “Justice Samuel Alito’s sweeping and blunt draft majority opinion from February overturning Roe remains the court’s only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes. No dissenting draft opinions have circulated from any justice, including the three liberals.” https://www.politico.com/news/2022/05/11/alito-abortion-draft-opinion-roe-00031648
[9] “POLITICO received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document” https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473
[10] “Does (the decision) read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” she asked. Americans should judge the court — or any federal court — by its reasoning, she said. “Is its reasoning that of a political or legislative body, or is its reasoning judicial?” she asked.
https://www.politico.com/news/2022/04/05/amy-coney-barrett-speech-justice-00022964