As a follow-up to my immediate post on the New York Times’s “inside story” on Dobbs last Friday, I’d like to highlight how the article dramatically bolsters the “liberal leaker” theory even as the reporters seem to go out of their way to try to obscure that reality.
Let’s start with a brief review of the competing theories over who was responsible for the notorious leak of the Dobbs draft on May 2, 2022.
Under the “conservative leaker” theory, the leaker was so concerned that a member of the hoped-for majority to overturn Roe would be lured away from Justice Alito’s draft opinion that the leaker tried to “lock in” the conservative justices. (And the conservative leaker somehow chose to put his professional career into the hands of two liberal Politico reporters and to ignite a political firestorm that predictably endangered the lives of the conservative justices, including those the leaker saw as at no risk of straying. But I’ll set aside these and other implausibilities for purposes of this post.)
Under the “liberal leaker” theory, the leaker was so desperate and angry at the fact of a solid majority to overturn Roe that he deliberately ignited a political firestorm, presumably indulging the sentiment that lefty legal commentator Ian Millhiser immediately attributed to him: “f*** it! Let’s burn this place down.”
So evidence that a conservative justice was wavering would provide some support for the conservative-leaker theory, and evidence that the anti-Roe majority was solid would be difficult to reconcile with it.
It’s important to have in mind that the Politico article that leaked Alito’s draft majority opinion did not state whether any of the other conservative justices had actually signed on to his draft. It said only that Justices Thomas, Gorsuch, Kavanaugh, and Barrett “had voted with Alito in the conference held among the justices after hearing oral arguments in December” and that “that line-up remains unchanged as of this week.”
One big piece of news that the NYT article delivers is that these four justices all signed on to Alito’s draft majority shortly after he circulated it on February 10, 2022. Indeed, in a “time-honored” practice, Alito had so carefully worked out the draft with these colleagues before circulating it to the full Court that they all embraced the draft without “request[ing] a single alteration.” They thus provided a “display of conservative force and discipline.”
There is nothing—not a single disclosure—in the article to suggest that any of these justices wavered one bit in the 81 days that passed between Alito’s circulation of his draft and Politico’s leak of it.
As Orin Kerr writes on the Volokh Conspiracy:
Given that timing, the theory that the leak was designed to “lock in” the majority, or that it had that effect, seems implausible to me. The five in the majority had all joined almost immediately, months earlier, with not a single suggestion of changing a single word in the 98-page draft.
True, it’s possible that a Justice might join an opinion one day and then “unjoin” it later before it is published. But that’s rare. And this was understood as likely the most important case of the Justices’ careers, with an opinion they had rushed to sign on to. And months had already passed. By the time of the leak, Alito’s opinion would have been seen as basically done.
[Addendum: In a podcast on her article, NYT reporter Jodi Kantor agrees: “Were these five votes 1000% [yes, “one thousand percent”] solid? We have reason to believe they were.” (Podcast at 14:09-14:15.)]
Amazingly, NYT’s reporters do their best to suggest exactly the opposite. They somehow contend that “the effect of the breach [i.e., the leak] is clear: It helped lock in the result …, undercutting Chief Justice Roberts and Justice Breyer’s quest to find a middle ground.” But as Kerr points out, any justice who was seriously “hoping to prevent a five-vote majority would go to the likely 5th vote Justice and ask them to hold off [on joining the majority] until concurrences and dissents are circulated.” The Chief had already voiced his incoherent “middle position” at oral argument, and none of his conservative colleagues found it attractive. It’s farfetched to think that any of them would suddenly have done so long after they signed on to Alito’s draft majority.
In hindsight, it’s especially striking that the leaker did not provide specific information on who had signed on to the draft. (Every justice and law clerk would have known that information.) If a conservative leaker had concerns that a justice who had already signed on to Alito’s draft might jump ship, he would have wanted to scream the fact that the justice had already signed on. How much greater the betrayal would be! For a liberal leaker, by contrast, it could be useful not to disclose that the Alito draft had garnered a majority, as that would add uncertainty as to whether the leaker was a liberal or a conservative and thus make it more difficult to identify the leaker.
The day before the NYT article was published, James Bennet, NYT’s former editorial-page editor, wrote a very long essay, “When the New York Times lost its way,” that laments how slavishly the NYT panders to the biases of their liberal readers. Reporters eager to make sense of their own reporting on Dobbs would have pointed out that it severely undermines the conservative-leaker theory. NYT’s reporters instead worked to distract their readers from that reality.