Within minutes after Politico reported on Monday evening that the Supreme Court was poised to overturn Roe v. Wade, speculation as to who might have leaked a draft of Justice Samuel Alito’s majority opinion to the media ran rampant.
Decided in 1973, Roe guaranteed a constitutional right to an abortion. If it is overturned, abortion will immediately be outlawed in 13 states with so-called trigger laws, or preemptive abortion bans, already on the books, with another 10 or more almost certain to implement their own bans.
Leaks from the Supreme Court, including those regarding forthcoming decisions, have occurred before. But, Slate noted, “a draft Supreme Court opinion has never been leaked in full in history, and there hasn’t been an advance leak of an outcome since 1986.”
In a tweet released Monday night, SCOTUSblog, a leading outlet covering the Supreme Court, described the leak as “the gravest, most unforgivable sin.”
It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.
— SCOTUSblog (@SCOTUSblog) May 3, 2022
So who would commit this “unforgivable sin,” and why?
Numerous commentators — especially conservatives such as Tomi Lahren of Fox News and Florida GOP vice chair Christian Ziegler — immediately surmised that the leak was a liberal effort to save Roe.
This #SCOTUS leak is a last-ditch effort by the Left to stir up yet another culture war in the hopes it can save them from utter obliteration in November. If it’s not BLM, it’s Roe v Wade. That’s all that’s in the toolbox.
— Tomi Lahren (@TomiLahren) May 3, 2022
The ‘Draft Opinion Obtained By Politico’ is actually a ‘Internal Staff Leak’, which no doubt was done as a hailmary from some Leftist Clerk to put incredible public pressure on Justices to flip their votes and save Roe.
This won’t turnout pretty. pic.twitter.com/7WBdNjzDHr
— Christian Ziegler 🇺🇸 (@ChrisMZiegler) May 3, 2022
Some conservatives, certain that it was a liberal leaker, became enraged. Matt Walsh, a columnist at the right-leaning Daily Wire, asserted, “The SCOTUS leak is an actual insurrection. An attempt to completely upend and delegitimize the rule of law.”
The SCOTUS leak is an actual insurrection. An attempt to completely upend and delegitimize the rule of law, incite violence and chaos, and potentially plunge the nation into civil war. January 6th was a stroll in the park compared to this. It's not even close.
— Best Selling Biologist Matt Walsh (@MattWalshBlog) May 3, 2022
Another theory posited that the leak actually came from Chief Justice John Roberts or someone aligned with him. Matthew Yglesias, the author of an influential center-left Substack column, speculated Monday that it “sounds a lot like someone from Team Roberts leaking to try to convince the other five that this is too much backlash.”
So that sounds a lot like someone from Team Roberts leaking to try to convince the other five that this is too much backlash and they should do the "Roe is effectively dead but we're not gonna say so clearly" strategy instead of this. https://t.co/y5AnQGyShi
— Matthew Yglesias (@mattyglesias) May 3, 2022
Roberts seemingly poured cold water on this theory on Tuesday when he released a statement saying, “This was a singular and egregious breach of that trust that is an affront to the Court,” and announcing that he had ordered an investigation to determine the source of the leak.
Other commentators, however, think it’s possible that the leak actually came from one of the five conservative justices on the high court, or one of their clerks, who plans to help overturn Roe. There are a number of possible explanations to why.
It may be what political strategists call a “trial balloon,” in which a potential future action is leaked to gauge public reaction. Elizabeth Sepper, a University of Texas law professor, raised that possibility in an interview with USA Today.
If I were a conspiracy theorist, I might theorize that today’s #SCOTUS “leak” was not actually a leak, but a deliberate “trial balloon,” designed to measure public opinion and public reaction, before writing the final opinion. Fortunately, I’m not a conspiracy theorist.
— Robert Collins (@DrRobertCollins) May 3, 2022
Harvard Law professor Laurence Tribe speculated that it may have been a trial balloon from one of the four justices joining Alito’s opinion who wants to force him to modulate the strident tone of his leaked decision.
Because Roberts wouldn’t join an opinion this vicious in tone even if he joins in the result, any of the 4 joining Alito has the leverage to demand changes in the language. Leaking this maximally harsh version as a trial balloon would magnify that leverage.
— Laurence Tribe (@tribelaw) May 3, 2022
One possibility is that someone from the anti-Roe faction on the court wanted to get the news out early in order to soften the backlash by drawing it out over a longer period before the midterm elections in November.
A related supposition holds that a conservative — perhaps fearing that someone in the majority might go wobbly and end up joining Roberts — is trying to lock the justices into voting to overturn Roe. The idea being that once conservatives know Roe was on the cusp of being overturned, no conservative will want to be hated by their own side for being the one to stop it from happening.
A number of law school professors have put out variations of these theories.
Suppose you're a conservative Justice committed to overruling Roe and Casey. There were five votes for that result at Conference, and Justice Alito circulated a draft opinion memorializing it. Now, dissents are coming, and you're worried about losing the majority. What do you do?
— Steve Vladeck (@steve_vladeck) May 3, 2022
I have zero inside knowledge, but I will wager this: this leak comes from a clerk or Justice whose sympathies are with the leaked opinion, worried (in a slightly crazy way) about locking that majority down, and willing to take the extreme step of leaking to advance that goal.
— Joseph Fishkin (@joeyfishkin) May 3, 2022
Far and away most likely impact of the leaked draft is that it locks in 5 votes for this opinion, essentially without edits. Who would want that? So: This is about as extreme an opinion as you can have overturning Roe.
— Amy Kapczynski (@akapczynski) May 3, 2022
“Is Brett Kavanaugh really going to thumb his nose at the entire right-wing legal world in which he was born and raised, in order to go with Roberts’ (false) moderation? Not after the leak,” UCLA law professor Joey Fishkin tweeted.
Another variation of that theory is that by triggering apoplexy on the left, the leak is intended to make a compromise decision, in which abortion rights are pared back but not totally eliminated, seem moderate by comparison.
Not sleeping on the theory that the leaked Alito opinion is a psy-op to make the eventual 6-3 Roberts decision weakening Roe into nothing without striking it down officially look moderate by comparison
— Michael Tae Sweeney (@mtsw) May 3, 2022
Whatever the truth of who did it, Americans are seemingly as divided over the leak as they are over abortion itself.