Politico is back with another story this morning by legal reporter Josh Gerstein, national-security reporter Alex Ward, and political reporter Ryan Lizza on the big leak. The big reveal up front is a new leak:
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.
As with the initial Politico story, assuming that this is actually from a source or sources in position to know this, it has to have come from someone familiar with the Court’s deliberations, or at least privy to the circulation of internal drafts — thus, not just someone who found a draft sitting around, and not just a roommate or family member of a justice or clerk (unless they are hearing this from a justice or clerk). The likeliest suspect is whoever talked to Gerstein and/or Ward for the initial story. If this is accurate, it also makes it even less likely that the initial leak came from a conservative; if the majority hasn’t cracked and nobody has even seen a Roberts opinion, that makes it less likely that someone on the right would see themselves as being on the losing side. My argument is that, unless the leaker is acting from some motive unrelated to the outcome of the case, the likeliest assumption is a leak by somebody who thinks their side is losing.
The other quotes in the case are from anonymous sources who aren’t giving away secrets but simply reporting the temper of the justices:
“This is the most serious assault on the court, perhaps from within, that the Supreme Court’s ever experienced,” said one person close to the court’s conservatives, who spoke anonymously because of the sensitive nature of the court deliberations. “It’s an understatement to say they are heavily, heavily burdened by this.” A second person close to the court said that the liberal justices “are as shocked as anyone” by the revelation. “There are concerns for the integrity of the institution,” this person said. “The views are uniform.” . . . [On whether Roberts could swing any of the five, after his decisions in the Obamacare and other cases]: “There is a price to be paid for what he did. Everybody remembers it,” said an attorney close to several conservative justices, who was granted anonymity due to the sensitive nature of the court’s arguments.
Roberts must find and expose the leaker, no matter who it is. The chief justice may be only one of nine in deciding cases, but the running of the Court as an institution is his burden alone. History will judge whether he succeeded at handling the leak in a way that ensures it will not happen again.