The leaking of a draft opinion in Dobbs v. Jackson Women’s Health Organization has rocked the Court and Washington. The 98-page draft opinion is dated Feb. 10, 2022 and authored by Associate Justice Samuel Alito. I have two columns (in USA Today and The Hill) today on the opinion and the disgraceful leak from within the Court.
The opinion is joined by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. It declares that “Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The opinion can change but the damage done to the Court as an institution will likely be lasting. This shattered a long tradition of the Court of strict secrecy and integrity in the handling of drafts.
The leak is the greatest crisis faced by Chief Justice John Roberts and the greatest security breach in the history of the Court.
While leaks have appeared periodically on internal strife or issues on the Court, I cannot recall anything of this scale. Roe itself was the subject of leaks. The Washington Post did run some leaks the court’s internal deliberations. Then there was a premature disclosure of information hours before the formal release of the opinions. A few hours before the release, word got out on the holding of the Court. However, that all pales in comparison to the release of a draft opinion months in advance of the expected release.
Chief Justice Roberts has confirmed the legitimacy of the draft and the launching of an investigation.
The question is how the Court will proceed in the investigation. Anyone taking this deeply unethical act is likely to have taken steps to hide their tracks. I would be surprised if there were a paper trail or email record. However, anyone who would take such a reckless act may have been equally reckless in the means used to violate the Court’s rules.
If the culprit is a lawyer, disbarment would seem a virtual certainty. This person may be a hero in the eyes of some, but will remain a pariah in the eyes of any ethical lawyer. Yet, disbarment could be the least of the problems. If a suspect lies to the FBI, there could be prosecution under 18 U.S.C. 1001.
Thus, the culprit will have to make a decision today of whether to radically increase the potential costs of this act. There are a relatively small number of individuals with access to these drafts. It is likely that the culprit will be contacted quickly with others by investigators. That will prove a critical moment that could transform an unethical into a criminal act.
Not as bad as the leak in the true life movie “Fair Game” outing a CIA agent, literally placing American lives at risk. That leaker was totally forgiven and pardoned by his buddies.
I’ve never had a strong position either way regarding abortion. On one hand human’s have a right to decide what they choose to do to their body’s on the other who speaks for the unborn? If the ruling is true a woman can always travel to an “abortive” state to meet her needs.
My immediate concern is who leaked the decision and what effort will be made to find, prosecute and jail. Enough is enough and I will continue to warn that the Democrats will do everything and anything to destroy the midterms. I’m beginning to believe they purposely want to destroy the republic. Look carefully at these people, I think they look and act like they’re psychological misfit’s.
“ If the ruling is true a woman can always travel to an “abortive” state to meet her needs.”
No, because states will also restrict travel to have an abortion. Missouri already has a proposed law doing just that.
“ Missouri lawmakers want to stop their residents from having abortions — even if they take place in another state.”
https://www.politico.com/news/2022/03/19/travel-abortion-law-missouri-00018539?_amp=true
It won’t be long before other states follow Missouri on that idea.
I tend to think that runs afoul of the Full Faith and Credit clause.
Banning travel to another state to get a procedure that is legal in that state is clearly unconstitutional.
Seems to me it would be akin to arresting someone who took a trip to say, Colorado to partake in recreational cannibals after they flew back home.
Margot, you’re the phoniest of the Stooge’s puppets. You pretend you’re not too anti-abortio, then the rest of your comment is typical stooge outrage.
As with the Hunter Biden laptop, this is probably Russian disinformation or a Trump tool.
Obviously a political act in an attempt to bring the female vote back to Dems since they are abandoning Dems over inflation, gas prices, and lawlessness
All those white suburban women who crossed over to vote for Trump will now be back voting for the Dems to protect their own and their daughter’s rights. This will have a huge impact on the mid-terms.
No we won’t. We know how to protect ourselves, and we have personal responsibility for our own actions. Something the youth of today never learned.
That’s great for you. Not so much for a teen girl who is raped.
Tin, we should all stop with the foolishness. If Roe is decimated, like it should be, abortion will be legal in almost all states, if not all, and will likely be somewhat expanded in scope in some. There will be more empathy for mothers who feel forced to have their children medically disposed of.
That girl who is raped will likely be treated a lot better in her home state than she is now, and if a state forbids it, there is another nearby. Such arguments are trite.
Nobody cared when that FBI lawyer made up emails about Trump and Russia. Nobody cared that Trump was impeached for nothing twice. Whoever leaked it will be a hero to the left and will come out financially better off than they currently are.
Vic, you’re right. Nobody cared about the so-called ‘Russia hoax’ because Trump was too comfy with Putin. And the fact that Trump was comfy with Putin casts aspersions on his 3 appointees to the court.
That’s kinda where I’m coming down, too. I mean, does anybody remember that an unethical Democrat betrayed Anita Hill and leaked her confidential statement to Nina Totenberg? Despite the Senate creating a team to investigate, the crack investigators never identified who the leaker was.
They used almost the same playbook on Kavanaugh – some unethical Democrat leaked Ford’s preposterous, unsubstantiated statement to WaPoo. Except I’m not even sure the Senate even bothered to conduct a fake investigation into who the leaker was.
Might be the New-Guy (What’s Her Name?)
Hey I got an idea, Maybe Elon Musk can buy the Supreme Court!
Just when you thought we hit the bottom – This.
Covert-Ops – It’s absolutely Disgusting.
Exactly what is happening with our Court? Its a diversion to take your eye from the mid term election. The Republicans and Independence have the donkeys on the run. One disaster after another and what do you do to change the narrative. You create a perceived disaster. No matter what happens Biden is still going to be the President and the sun is still going to come up in the East.
Chief Justice John Roberts knew this would happen when he assigned Alioto to write the opinion. So if the Dems win the mid-terms because of this, blame it on Roberts.
The only INTERESTING question is if the reporter was ordered by a judge to reveal his source and the appeal landed terminally in the Supreme Court they would ALL have to recuse themselves.
THIS is the ONLY case that could NOT be decided by the Supreme Court.
Wrong, Dean. But nice try.
Serious question, is leaking a draft of an opinion even illegal? If not, why would the FBI investigate it? I’m more concerned about the impact of the draft/ruling than the leak itself. The screaming about the leaker is at least partially to keep from discussing the ruling. Stare decisis anyone, is birth control next, or segregated schools?
Yes, Enigma, once again conservatives are ‘howling with outrage’ while trampling the rights of others.
Enigma you do bring up a more important point. Will states that have laws that automatically ban all abortions if roe is overturned will they just go ahead and ban all abortions prior to the ruling actual ruling?
As I noted up thread. Missouri has proposed banning people from going out of state to have an abortion where it’s legal. Anti-abortion states won’t stop at just banning abortion it will add draconian laws preventing people from traveling to where it’s legal. Abortion pills are next and it’s virtually guaranteed there will be an underground industry circumventing the new laws proposed or already on the books.
Criminalization of women having a miscarriage is also possible.
That’s a good question, Enigma. Prof Turley was on Fox News this morning saying he doesn’t believe that leaking a draft opinion is illegal, but if not, then why is the FBI involved? By statute, there has to be a “predicate” for the FBI to investigate, meaning that there has to be a reasonable belief that an actual crime has been committed. As a long-term federal employee, my view is that they can find a “crime” if they want to. For example, there’s a Computer Fraud and Abuse statute (not sure of the exact title) that is astonishingly wide. It says that if you use a “protected” computer (and that would be any government computer) for a non-official purpose, you can be prosecuted. So if you’re a disfavored employee, and you look up a baseball score or the weather on your government computer, you can be prosecuted, even though other employees make such non-official accesses everyday and nobody cares. So with respect to this case, if the SCOTUS employee downloaded the draft for the purpose of leaking it, he can be prosecuted. If he downloaded it for the purpose of work, but later decided to leak it, then they would have to look at some other statute, such as “misuse of government property.” But believe me, they’ll find something to charge him/her with!
Thank you!
The leaker is a democrat court clerk who bought stock in coat hanger companies.
Yeah, Fortunato, we’re back to coat hanger times. Everything old is new again!
Fortunato:
I knew there was a good reason they walled you up with your keg of wine or was it whine?
Speechless at this one. When they go low, we go high? I am simply in awe. Do these fools not realize the states would have all the power and that no blue or purple state would ever eliminate abortion? Had to be younger clerk or similar, if indeed it weren’t a plot. I didn’t think even modern dems would stoop this low. Shocking, regardless of where the truth lay.
Ignorance is bliss on the left.
Professor Turley Writes:
“This person may be a hero in the eyes of some”.
YES, this person is probably a hero to at ‘least’ half the country and maybe even three quarters.
With this opinion the court turns on American women and takes away rights that 2 generations have always known. It should be recognized as the travesty it is.
With this opinion Republicans are the dog that finally caught the car. What Now? ‘Chew on the tires’?
With this opinion Republicans are the dog that finally caught the car. What Now? ‘Chew on the tires’?
The Supreme Court has Voted to Recognize the People’s Right to a Limited Federal Government*.
* limiting the power of the judicial branch to legislate from the bench
Yup. There’s that pesky freedom again, can’t have that. 🙄🙄
Iowan, this ‘is’ legislating from the bench. Republicans NEVER could’ve passed this through Congress.
“this”
What is “this”
But regardless of “this”. Democrats and Republican have equal opportunity to legislate
Yeah, Iowan. And Republicans couldn’t legislate an abortion ban.
As usual, you have things backward.
“[T]he People’s Right to a Limited Federal Government*”
So unlimited *Federal* government is bad.
But unlimited State government is good.
Tyranny of the majority is evil, whether Federal or State.
So unlimited *Federal* government is bad.
But unlimited State government is good.
Sam,
Your conclusion doesn’t logically flow. Someone believing the former is far more likely to not believe the latter.
Tyranny of the majority is evil, whether Federal or State.
I absolutely agree. Tyranny will always be a threat, so in our federalist system, contain it at as low a level of government as possible.
To people like anonymous, heroes are those that blow up things, killing others, including their own people. The one who released the draft likely did so to spread alarm while influencing the court and increasing left agitation. If so, it is a typical anti-American action by a leftist. Did it make the country a better country? No. Why not? Because that is not the left’s aim.
My money is on Sotomayor’s staff. The left benefits most from the leak, causing the chaos that is happening right now. Whoever did it should be fired immediately.
I’m with ya!
The Court is up in arms and rightfully so since this looks like a Leftwing hit job to pressure its members. Only a Justice or clerk gets access to the opinions before publication so the perp pool is limited. Best bet is Sotomayor or her clerks since she’s about as radical as they come. That said, I wonder if the Court is so sanguine on Pentagon Papers style leaks now. Recall the Court permitted publication of classified material in the name of the First Amendment when the NYT did it. Wonder how that looks to SCOTUS now when it’s own ox is involved in the goring.
since the DOJ is 100% corrupt for DEMOCRATS…nothing will happen
I don’t know if this draft supposedly from the Supreme Court is authentic or not so I’m not jumping on any bandwagon to condemn or condone what’s been reported by Politico, especially with the record that Politico has shown. What I am going to say is that I won’t stop saying the following until there is a very noticeable change in the way the political left produces and delivers their anti-conservative propaganda…
This narrative from the political left is no different than any of their other narratives, it’s presented in a way to instill hate and mistrust of conservatives, don’t trust it – yet!
As I see it; all the narratives that come out of the political left’s propaganda factories follow a pattern of sorts.
1. Unverifiable anonymous source, as usual.
2. Undermines an institution of the United States of America in some way.
3. Gins up more hate, more mistrust and outright fear of Conservatives.
4. Justifies all their previous propaganda narratives full of innuendo, attacks and lies.
5. Sets up Democrats and Progressives to politically benefit from hate, mistrust and fear.
Steve Witherspoon,
You’re describing everything the right does to a “T”. Projection is a sign of guilt.
It won’t be long before right wing religious zealots start adding more restrictions and limiting women’s freedoms.
Will they go after comprehensive sex education next?
Anonymous asks:
“Will they go after comprehensive sex education next?”
Silly question! The Christian Taliban will outlaw contraception, naturally.
What a fool.
Steve, you’re right. This opinion will instill mistrust and hate. So if the court deluded itself into thinking this opinion would finally ‘settle’ this issue, they were horribly mistaken.
The draft opinion specifically addresses this issue. It does not “settle” the abortion question, and it was a grave mistake by Roe and Casey to try to settle the question in the first place. This is a tough social issue not addresses in the Constitution and reserve in that Constitution to the States or the People. The draft decision basically says, “Don’t bother me, talk to your representative.”
Yeah, Tommy ‘talk to your representative’. That’s how this should’ve been handled: ‘by Congress’.
For those tempted to get hysterical about the loss of rights, I would remind you that the world was a very different place in 1973. Women paid a very high price for being pregnant, especially if unwed. Loss of your job, removal from high school classrooms and some college classrooms, a bleak economic picture, social exclusion & shame. The justices of the time likely figured that into their thinking, unconsciously if not consciously. Today things are very different. No more social stigma associated, good jobs and good daycare abound. Sadly abortion has come to replace birth control (whatever happened to the MALE pill? It disappeared about the time Roe settled in). And late term abortion is an abomination to any thinking/feeling person. It’s gone too far and yes time for a revision. That’s of course social thinking which for a strict constitutionalist should be off limits in any case. The legal merits (that abortion should be regulated by elected officials) well I can buy that too. All that said, the timing and dark implications of the leak are the worst imaginable.
Johnathan, let’s see your stats showing that ‘abortion’ has replaced birth control’..
And by the way, your comment is totally pretentious in suggesting that abortion is now outdated. Not that much has changed! The truth is that employment in many regions is a low-paid, non-union service job. Try raising a kid while stacking shelves at Walmart and see how far you get.
People shouldn’t “blindly accept” anything.
The political right demonstrates that “pattern” as often as the political left, and your overgeneralization about the left doesn’t serve truthful discussion.
Now would be the time for John Roberts and Brett Kavanaugh to display their institutional proclivities. Even at that, a morally vacuous Biden administration can probably flick it all away like a mosquito with a picnic.
Roberta, we’ve never seen you before. Just pop out of nowhere?
I think this is the most deliberate”bait and switch” ever perpetrated upon the American people at a time of dwindling popularity of the administration to offset a predicted overthrow of the permanent ruling class.
Never mind the border, the economy, the morphing into war with Russia-you will have most of the media with their hair on fire nudging panic in the streets at least through November. The person (s) responsible for this is the most dangerous kind of traitor.
I agree that the perpetrator should be prosecuted. Is nothing sacred?
You are consistant. Anti free speech.
Holy cow!
I just liked a post by Mr. Silberman. Can someone please check the temperature in hell for us?
Jeff, you’re a weasel buying Turley’s tripe. The culprit here gave American women the heads-up on a giant leap backward.
Said by anonymous who doesn’t believe in the law or democracy.
You’re an anonymous who doesn’t believe in the law or democracy.
Anonymous says:
“Jeff, you’re a weasel buying Turley’s tripe. The culprit here gave American women the heads-up on a giant leap backward.”
I agree with Turley far more than I disagree with him. We are both NEVERTrumpers. Leaking is an act of civil disobedience. He or she needs to be punished for breaking the rules. Like Turley, I stand for law and order unlike lying Trumpists who will excuse Trump and his cronies no matter what crime they engage in.
American women would have gotten the bad news eventually. The Evangelicals have sown the wind; now they will reap the whirlwind.
Yes, some things ARE sacred. Constitutional rights and civil rights. Whoever leaked this knew that he/she was taking a tremendous risk, but put his career and possibly freedom on the line for what he believes is a greater concern – taking away a fundamental constitutional right from 50% of U.S. citizens. If SCOTUS decides that Brown v. Board of Education was “Wrong from the start” and decides to overturn it, issuing the opinion after the mid-terms, I hope someone has the courage to speak up before then. Constitutional rights are not something that should be decided state-by-state. That’s the very reason for FEDERAL civil rights statutes. Of course, women’s rights have been under attack from the left, allowing biological males to destroy women’s sports, and now the right has driven a stake through what remained of a women’s right to autonomy and to control her own destiny.
TIN,
Let’s hope American women and men get motivated to vote out legislators who pass laws criminalizing abortion. It’s up to the majority to decide how to run their lives not religious fundamentalists.
Putin did it.
BTW Professor, try to find a current photo of the Court.
Breyer isn’t gone yet. Get your facts straight.
Interesting. Professor has two photos. One has Ginsburg. Be nicer Doc. Snottiness becomes no-one.
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Leaked Dobbs Draft Opinion Rocks the Court and Washington
jonathanturley
May 3
Josh Blackman at The Volokh Conspiracy suspects the leak didn’t come from any chambers of the Court:
https://reason.com/volokh/2022/05/02/whodunnit/
Not a particularly compelling case at Vorlokh. The typesetter did it! Yeah and Gutenberg helped!