Opposing theories about the identity and motives of the one who expired the draft opinion of the Supreme Court of the majority, which will overturn Rowe v. Wade, have been circulating for almost a week since its publication.
The question of who benefits most from breaking the legendary veil of secrecy has become a major part of the protest after revelations that the conservative majority appears ready to destroy a half-century-old constitutional right.
Politico did not disclose any information on how it received the draft decision when it announced on Monday night that four other conservative judges had sided with Judge Samuel Alito to overturn the precedent. Nothing in the draft opinion or the reported positions of the judges is final until the court has ruled.
The idea that seems to have been most widespread is that the bill came from someone who opposes the court overturning Rowe – perhaps an employee of one of the liberal judges – who wanted to stimulate the public by anticipating a possible release. in June.
But an alternative and equally plausible proposal suggested by some judicial observers suggests that an anti-abortion figure with access to the draft opinion has expired to discourage one of the conservative judges from changing his country or softening his tongue before the court rules. .
Kel McClanahan, an associate professor of law at George Washington University and a lawyer specializing in whistleblower law, says the two dominant competing theories are based on the belief that a liberal in court will leak the document out of optimistic hope that he will mobilize voters or that the Conservative would do so to try to conclude the draft as the inevitable, final outcome in the case.
“A Democrat would do this to try to encourage the public to come out and vote democratically and write Rowe in the statute,” McClanahan said. “A conservative would do this without any public effect – they would do it because they were afraid that the final number would not be five to four.”
“So the question is, was he more likely to have been a cunning Jedi master Republican or a liberal optimist with wide eyes?” Both are plausible, “he added.
Commentators on social media and news outlets also offer a dizzying set of other options for the source of the individual’s outflow and motivation. Speculation ranges from inconsistent conspiracy theories to plausible narratives based on the political goals of rational figures in the orbit of the court.
Some cite a column published by The Wall Street Journal’s editorial board a week before the leak, arguing for Roe’s cancellation and speculating without explanation that Alito would be tasked with writing the majority’s opinion. The editorial also says that Judges Brett Cavanaugh and Amy Connie Barrett may be vulnerable to Roberts’ attempt to form a middle ground that will not completely overturn Rowe.
Tom Goldstein, a lawyer who has argued dozens of cases before the Supreme Court and served as publisher of the widely read SCOTUSblog, wrote in a post Thursday that he believes the newspaper was informed of the current state of judges’ debates and that Politico leaks came as a kind of revenge.
“I guess someone on the left felt somewhat justified in responding,” Goldstein wrote. “The opinion showed what Cavanaugh and Barrett were saying in the magazine. This leak was a historically unprecedented breach of the deepest and most solemn trust among judges and court staff. That hurt the institution. “
But at the moment, almost nothing is known about the identity of the drain, so the theories put forward by conspirators or constitutional scholars are simply speculative.
Chief Justice John Roberts said last week that he had ordered a chief judge to investigate the leak and vowed that unauthorized disclosure would fail to undermine the judges’ work.
“Court officials have an exemplary and important tradition of respecting the confidentiality of the trial and maintaining the trust of the court,” Roberts said in a statement. “This was an extreme and gross breach of trust, which is an insult to the Court and the community of civil servants who work here.”
The mystery may not be solved for years, if ever, despite internal scrutiny, intense political scrutiny and national curiosity.
However, the issue and widespread speculation have legal and political significance, as the country is waiting to see if the Supreme Court will move forward with the reversal of the remarkable ruling.
Republican leaders responded by condemning the leak and calling for a full investigation and even criminal charges, a push that seems to be aimed at putting the disclosure itself, not the essence of the draft, in the spotlight.
The conservative response takes it for granted that the leak comes from the liberal wing of the judiciary.
“Last night’s stunning violation was an attack on the independence of the Supreme Court,” Senate Minority Leader Mitch McConnell (R-Ky.) Said in a statement last week. “By all indications, this was another escalation in the radical left’s ongoing campaign to harass and intimidate federal judges and replace the rule of law with the mob.
But Logan Strotter, a professor of political science at Purdue University who studies public perception of the Supreme Court, says the fact that the draft opinion has expired is likely to have little impact on the institution’s legitimacy compared to the impact of the project’s content. if it becomes law.
“I think people will tell each other stories about where it comes from that helps them feel good about their team,” he said.
Strotter co-authored an upcoming study that found that leaks did not change public perception of the Supreme Court at all, although there has never been one. He found that opinions about the court were largely based on whether people agreed with its decisions.
“People tend to make policy-based decisions about the court,” he said. “They like the court when it makes decisions they like, they don’t like the court when it makes decisions they don’t like.
“My expectation would be that this decision would harm the legitimacy of the court” due to popular support for Roe, Strotter added.
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But for those in court, McClanahan says there is likely to be a more tangible response to the leak as a result of intense scrutiny by the chief justice and political leaders. And competing theories about the leak, combined with a lack of evidence, will leave everyone vulnerable to invasion of privacy and perhaps even legal danger.
“It will be completely free for everyone,” he said. “I will be really shocked if no one from the Supreme Court is punished for something. I will be just as shocked if no one from the Supreme Court is punished for something completely unrelated to the investigation. “
“If you work for the Supreme Court, talk to a lawyer, whether you’re a whistleblower or not,” McClanahan advised. “This is the person who will be able to help you navigate the storm you are about to overcome.”
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