Dan McLaughlin has already written about Supreme Court Associate Justice Samuel Alito’s remarkable interview with the Wall Street Journal published this weekend. I found his thoughts about the professional limbo the leaker may currently be in (as well as the exposure he or she is causing to coworkers and fellow suspected clerks) to be well-observed, and something the leaker ought to consider.
But I would like to emphasize something Dan only glanced at in his piece, because given the general reaction I am seeing on social media, it deserves to be placed at the forefront: This was not an interview given freely, or lightly. Supreme Court justices do not simply freelance interviews like celebrities being filmed on iPhones for TMZ. This was arranged with the Journal’s James Taranto, a 20-plus-year veteran, with Washington, D.C., appellate attorney David Rivkin as presumable intermediary (explaining the byline). It was not published immediately, rather held for two weeks before publication. It is a considered statement, intended to convey a message. Members of the Supreme Court rarely speak in such manner in public, and it must be understood that they know that when they do in 2023 they risk everything in terms of their public reputation.
So when Samuel Alito says that he’s pretty sure he knows who the leaker is and that it came from the left — and when you square that with the marshal of the Supreme Court’s curiously squishy language in her final report about not being able to identify the leaker to a “preponderance of the evidence standard” — it would behoove Court observers (regardless of how partisan they are) to understand that nobody in a position such as Alito’s thinks carefully about this, goes out and arranges a newsmaking interview with a friendly venue, and puts not only their own reputation but that of the entire conservative wing of the Court on the line if he’s lying. Samuel Alito is a human being in addition to being a judge; he’s not showing up to work on Monday and looking his fellow justices in the eye if either he’s blustering here or if they think he is. My guess is simple: Everyone on the Court is either biblically or pretty sure who the leaker is. They talk about it. (Think about it! They obviously have talked about it a lot, because it is a matter of internal security, and also they are not robots.)
What that leaves the rest of us with is . . . speculation. I find it unproductive. Theories abound as to the identity of the leaker, all merely based on suspicion and rumor, and one imagines that just as we finally learned the identity of Deep Throat, so too will we one day learn who leaked Dobbs to Politico in an attempt to alter its final outcome. Until then we can only observe the horrifying damage it has done to the Supreme Court as an institution. Justices were turned into targets of assassination. Trust was shattered between chambers. One can only guess at the internal ructions, and hope perhaps to read about it decades later.
And finally, it is no accident that we are seeing a recent spate of spurious yet mysteriously focused attacks on the legitimacy of the six conservative-leaning Supreme Court justices just as progressive activists realized that they could not be cowed into retracting Dobbs, and progressives would be forced to live with the Court as an obstacle to their unconstitutional goals just as Biden (or whatever Democrat defeats Trump) is set for four years of unified party rule. For people who look over the horizon, as opposed to two feet in front of them, that’s the intended play here: If the Court cannot be intimidated, it must be undermined, expanded, or delegitimized. The Dobbs leak was but the first volley in a much longer, ongoing war against the third branch of government.