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Yale 62

The SCOTUS Leak: a Y62 Perspective
By Lee Bolman

Lance LiebmanLast week’s leak of Justice Samuel Alito’s draft opinion on abortion rights was a media bombshell. It reignited the long and intense debate over “choice” vs. “life” while triggering a new debate over how and why the leak happened. Here are takes on the latter question from two members of our class who served as Supreme Court law clerks, Lance Liebman and Steve Howard. That was in 1967. They appeared together on a Coffee Hour last year to discuss their experience and changes since then about the Supreme Court.

Lance: “As I am sure Steve Howard would agree, It was not conceivable when we were law clerks (1967 Term for me, working for Justice White) that a clerk or a secretary or any other Court employee would share a draft opinion with anyone or any journalist (I am amused about Politico not existing until 2007).

“Now: A conservative law clerk? A liberal law clerk? Hard to believe or to see how it would help their political cause. Did Justice Thomas’s somewhat weird wife share it with a pro-Trump friend (again, hard to believe). So maybe it was accidentally left someplace by a clerk who meant to take it home to work on? All long shots. Anyway, the Court’s approval and its attempt to preserve its non-political dignity have certainly been damaged by this.”

Steve HowardSteve: “My thoughts about the leak are no different from the thoughts of many others that have already been spread across the media.

“Mainly, I’m just profoundly upset that the draft opinion very likely sets forth firm views of five justices of the U.S. Supreme Court. It’s just plain awful. I have no sympathy for Senators Collins and Murkowski. It was perfectly obvious at the time they voted to confirm Kavanaugh that he was just shining them on with generalities that he could easily, and likely would, brush aside when it became convenient for him to do so.

“I have considered whether the leaker could be one of the justices’ law clerks, but I think that’s very unlikely, unless, God forbid, that clerk’s justice wanted the draft leaked (also very unlikely).”

Separate from Lance and Steve’s comments, Al Chambers mentioned an additional perspective from Tom Goldstein (Scotusblog.org), who argues that the release of Alito’s draft was actually the last of three leaks. The first, to the Wall Street Journal, said that the court was planning to overturn Roe v. Wade but Chief Justice Roberts was trying to build support for a more moderate ruling. The second leak, to Politico, identified five justices (Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) as the majority planning to overturn Roe. The third leak, also to Politico, was the Alito draft. Goldstein speculates that the leak to the Journal likely came from a conservative, while the third leak was a counter-punch from a liberal. In other words, he suggests that there was more than one leaker and we might be seeing a game of inside ping-pong. Goldstein and his wife, Amy Howe, founded Scotusblog.org in 2002. They say “Scotusblog is devoted to covering the U.S. Supreme Court comprehensively, without bias and according to the highest journalistic and legal ethical standards. The blog is provided as a public service.”

Politico posted a fresh story Wednesday morning, which reported the Supreme Court would meet May 12 for the first time since the disclosure that it voted to overturn Roe v. Wade, and there’s no sign the court is changing course from issuing that ruling by the end of June. The Politico update, again without disclosing its source(s), somewhat surprisingly contended that Alito’s “sweeping and blunt draft” remains the court’s only circulated draft in the pending Mississippi abortion case, and that to date, none of the conservative justices who initially sided with Alito have switched their votes. Similarly, Politico added that “no dissenting draft opinions have circulated from any justice, including the three liberals. As this story plays out, this latest Politico story in all likelihood will be a standard for its wording and accuracy and may be contrasted with other reports and rumors from more partisan media.

 
We welcome your comments.

6 comments to The SCOTUS Leak: a Y62 Perspective

  • thomas triplett

    This is very disturbing. Both the leak and the effort to coerce one or more Justices to change their mind. My opinion is that the person or persons that leaked this information should be punished. If a clerk, debarment fits the misconduct. And as for the picketing at the homes of the Justices, the criminal code speaks directly to the conduct, and the AG should respond with a warning and if not heeded, prosecution. Finally, if the Justices were to succumb to the coercion, their intellectual honesty would be dishonored

  • The unseemly protests at the justices’ homes seem less unseemly in light of earlier SCOTUS rulings approving protesting at the homes and clinics of abortionists.

  • Bill Weber

    This country seems to go from firestorm to firestorm and the abortion issue is certainly one of the most ferocious; what’s next?

    • What’s next: Other forms of birth control (overturning Griswold v. Connecticut?); gender identity & sexual orientation; book banning/burning.

      When I first moved to Idaho, in the 1970s, a favorite slogan was “Idaho Is What America Was.” Now it seems, Idaho Is What America Is Becoming:
      Recently, a state legislator who successfully pushed one of the nation’s toughest anti-abortion laws said he’s now considering outlawing IUDs.
      The legislature has repeatedly refused to add “gender identity” & “sexual orientation” to Idaho’s civil rights.
      Last week, the Nampa school board removed 22 books from its libraries, following the Idaho Senate’s failure to pass House legislation to punish librarians who allowed kids to check out “inappropriate” reading materials.

  • Charles E. Valier

    As an aside to this discussion and addressing what is unseemly I offer the following. First, the leak, presumably by a clerk or other court functionary plausibly came from someone who thought, albeit most mistakenly, the leak could change minds. Most likely, it has frozen opinions. As an acquaintance of Justice Thomas when he worked in the Attorney General’s office and I in the Governor’s office in Jefferson City, I found the charge of his sexual misconduct very hard to believe, but slash and burn tactics are common today. While I never met justice Kavanaugh I have known his accuser’s best friend and vouchsafe for her story, for many years. When she said that she and his accuser had never met Kavanaugh she was bullied by Democrats who wanted to uphold the accusation, but never deviated from her testimony. Yet the taint of the clearly fraudulent accusation still follows him. Personally, I have never accepted / understood the rationale for Rowe v. Wade, even though I welcomed the result, since my politics are pro-choice. I suppose this is a failing in my legal education. The issue for me is not the result of the Mississippi case, but the politics at the Supreme Court because the opponents seem mired in the politics of personal assault or intimidation. Picketing at justice’s homes is unseemly and counter productive. Designed to irritate, not sway the justices. Shumer’s appearance at the courthouse steps threatening justices Gorsuch and Kavanaugh was even more unseemly. We seem to be so polarized by our sense of our belief in the conclusion of Roe that hubris has set in and we have sunk to a new low. The means does not always justify the ends. In our desire to uphold a political position we have lost our moral compass. The overturning of Roe is not the end of the world, nor abortion. While I would prefer that it not be overturned such action would not surprise, nor offend me. Speculation as to what it means, is just that, but it is designed to inflame. We have a system of government, while messy at times, actually works and protects us. It seems to me that there are many who in their zeal to intimidate and force their opinions on all of us are coming too close to dissolution. Hyperbola seems to be too common.

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