Why the Leak of the Draft Decision on Roe v. Wade?

Why the Leak of the Draft Decision on Roe v. Wade?
Demonstrators Jonah Smith from California, left, and Robin G. from the D.C. area, stand outside the U.S. Supreme Court on May 3, 2022. (AP Photo/Jose Luis Magana)
Rob Natelson
The leak of a draft Supreme Court opinion potentially overruling Roe v. Wade is unprecedented. To understand the likely motives behind the leak, let’s go back in time and place. Bear with me as I review a similar case (pdf) from a half-century ago.

It’s the summer of 1972. The place is the state of Montana. Montanans have just voted in a referendum on a proposed new state constitution.

The results of the referendum were extremely close. There were—barely—more “yes” votes than “no” votes. But except in cases of revolution, any new state constitution must be adopted in accordance with the rules of the preexisting state constitution. And the preexisting Montana constitution (like the constitutions of some other states) says that winning more “yes” votes than “no” votes isn’t sufficient. Rather, the “yes” votes must amount to a majority of the people voting on all issues in the election, not just on the constitution.

Moreover, the voters had been told repeatedly: If you vote on other issues but abstain on the constitution, you are voting “no.”

Nevertheless, the governor proclaims the new charter adopted. Several citizens sue and, without a trial court hearing, the case goes directly to the state Supreme Court.

During their discussion in chambers, the five justices split 3–2. The majority decides the “yes” votes weren’t sufficient. The chief justice, who is on the majority, begins writing an opinion for the court.

But most prominent Montana politicians want the new constitution to pass. That’s because it would give them more power than they enjoyed under the existing document. For whatever reason, someone violates the secrecy of the court by leaking the results of the preliminary 3–2 vote. Unlike in the current case, the leak isn’t to the press but to one or more prominent Montana politicians.

They quickly identify one of the three justices in the majority as the weak link. They secretly apply pressure to him. Reportedly, for example, U.S. Sen. Lee Metcalf (D-Mont.) telephoned the swing justice personally and browbeat him. They persuade him to switch his vote. The minority becomes the majority and the new constitution becomes “law.”

Professor Alan Dershowitz has speculated that the person who leaked the draft opinion in Dobbs v. Jackson Women’s Health Organization (pdf) probably was one of the Supreme Court clerks. I agree. Most clerks are recent graduates of left-leaning law schools in left-leaning universities. Those schools often stoke the fervor of students who already lean left. Such fervor might well induce an ethically challenged clerk to leak a preliminary opinion the clerk wanted reversed.

But why? What’s the end game? To encourage Congress to encrust Roe v. Wade into federal statute? The congressional leadership doesn’t have the votes to do that, as any D.C. clerk would know. To encourage Congress to stack the court? Ditto. To mobilize the left’s political base in advance of the 2022 elections? Maybe. But that could have been accomplished by waiting until the final opinion comes out next month.

Another possibility is pure spite. However, a more likely motive is to recreate what happened in Montana in 1972: to expose a potential swing justice to political pressure. Of course, the clerk wouldn’t have to know about the Montana case to think of this possibility.

Just as the initial vote in the Montana case was 3–2, the vote for overturning Roe v. Wade appears to have been 5–4. One among Justices Stephen Breyer, Elena Kagan, or Sonia Sotomayor might vote to modify Roe, but none is likely to vote for a clean reversal. If Chief Justice John Roberts favored a clean reversal, he probably would have assigned the opinion to himself.

Apparently, he’s not in the majority, though, so he appointed Justice Samuel Alito to do the job. Alito has more seniority than anyone else in the majority except Justice Clarence Thomas, and Alito is a more centrist figure than Thomas.

If the preliminary vote was 5–4, then a switch by even one member of the court would prevent a clean reversal.

How to persuade one justice to switch? And which one is the target?

As the Montana case illustrates, political pressure can induce some judges to change their votes. Political pressure can take many forms: academic and media assaults on the court, raising concerns among its members about their “legitimacy,” threats of future congressional attacks on the court’s independence, and, of course, mob activity.

Based on the histories of Thomas, Alito, and Gorsuch, it’s highly doubtful that any Supreme Court clerk concluded that they would succumb to heavy-handed tactics. Justice Amy Coney Barrett has been on the bench for a shorter time, but her background, too, bespeaks a toughness that makes her an unlikely victim.

So my guess is that the target is Justice Brett Kavanaugh.

Note well: I’m not saying that Kavanaugh would, in fact, cave under pressure. I’m saying only that a leaker might think he might. Kavanaugh has deep roots inside the Beltway. He was born in Washington and has spent his professional life there. The brutal smears on his character during his confirmation hearings clearly had an emotional effect on him.

Of course, those smears would have an emotional effect on anyone. But he displayed it to a much greater extent than, for example, Thomas did when charged in a similar manner.

As we witness the agitation from the left grow, let’s hope all five justices in the majority stand firm. Not just because Roe v. Wade deserves to be overruled, but also for the integrity of the Supreme Court as an institution.
One last point: During the COVID-19 pandemic, the court sometimes struck down federal mandates but universally sustained state mandates. In a later essay, I’ll explain why that course of decision rendered predictable the 5–4 majority for reversing Roe.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is a contributor to The Heritage Foundation’s “Heritage Guide to the Constitution.”
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