In a surprising statement to The Wall Street Journal today, Supreme Court Justice Samuel Alito says he has a “pretty good idea” who leaked a draft opinion in Dobbs v. Jackson Women’s Health Organization. He strongly suggested that it was someone who opposed the opinion and wanted to pressure the justices not to go forward with the overturning of Roe v. Wade.
Alito told the newspaper “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody.”
Alito’s confidence runs counter to the two-page statement of the court that the team led by Marshal of the Supreme Court Gail Curley “has to date been unable to identify a person responsible by a preponderance of the evidence.” That is a standard lower than “beyond a reasonable doubt.” It is often used in civil cases, but the evidence was viewed as below that standard.
He added “It was a part of an effort to prevent the Dobbs draft…from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court.”
The statement suggests that such information on the specific suspect was shared with the justices. If this was a clerk and the evidence is known to all of the justices, it would be interesting if the justice responsible for the appointment felt comfortable in recommending the young lawyer for later employment.
Alito’s statement contradicts those in the media like NPR’s Nina Totenberg who insisted that “the only [theory] that makes sense” is that a conservative leaked the opinion. At the time, I criticized Totenberg’s claim as entirely unsupported and illogical.
We know from the investigation that clerks (but not justices) were asked to sign affidavits after their interviews and the marshals emphasized that “If investigators later determine any personnel lied to the investigators, those personnel would be subject to prosecution for a false statement.”
In a weird way, it seems even more troubling that the likely culprit may have been identified, but has proceeded into practice as an attorney. As I have previously written, this was a crushing blow to the Court and its traditions of integrity and civility. You cannot be an attorney after violating these core principles of our profession. This is akin to being an atheist priest or an arsonist architect. It is simply incompatible with our core identity, including being “officers of the court.”
Whoever is responsible for this leak violated the most fundamental rules of ethics in our profession. It was a betrayal of not just the Court and the bar, but the public in shattering the confidentiality of the judicial process.
What is even more troubling is that, if the culprit were to come forward, the individual would likely be lionized by many. Indeed, I would not be surprised if, after the statute of limitations has passed, there could come a time when this person may want to take “credit” for this disgraceful act. However, that may not occur for some time since this person likely wants to continue to practice as a lawyer despite violating an oath, making false statements, and disrupting the highest court.
Yet, it did not change the result. Indeed, it may have backfired. If this was a liberal, the effort to pressure the Court may have only reinforced the resolve of the majority to hold firm on the position from the Dobbs draft.
Rules, laws, punishment, prison only for the little people. No rules for the elite.
They do not care how bad it looks.
They protect their own. Always.
As there were actually (at least) two leakers (2 & 3 might be same person), and three leaks. I missed these pieces:
1. Most certenly a conservative familiar with SCOTUS deliberations leaked this: On 4/26/22, the Editiorial Board of WSJ [1] informed that SCOTUS had voted to overrule Roe v. Wade, but that the precise outcome remains in doubt.
2. In response, “POLITICO [2] received a copy of the draft opinion from a person familiar with the court’s proceedings […] along with other details supporting the authenticity of the document.” The 1st draft (circulated on 2/10/22) was published on 5/2/22 in full (98 pages).
3. POLITICO also wrote: “A person familiar with the court’s deliberations said that four of the other Republican-appointed justices — Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.”
4. What was not leaked: (a] Within a time-span of just shy of three months, most likely susbsequent drafts circulated to SCOTUS. (b) POLITICO was not told which justices had agreed to sign draft in question.
5. Within days speculation about possible leakers (photos included) circulated on twitter (eg @willchamberlin, @MattWolking) and in right wing online media. JustALazyGamer fabricated a YouTube Video (which is still online). I don’t know if one of them fits with Alito’s “pretty good idea”.
On a seperate note: Maybe draft leaker will switch ships and accept Simon & Schuster’s book deal and joins CNNs legal team.
[1] https://www.wsj.com/articles/abortion-and-the-supreme-court-dobbs-v-jackson-mississippi-john-roberts-11651009292
[2] https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473
More ‘I know why, NOT I know who, it this juncture. Wastomahtyme!!
ZZ – I’d like to know who as well but Alito’s reason for not divulging holds water. To name a name without being able to prove it would be foolish in the extreme.
I will maintain my original hypothesis. This was done by a sitting Justice. Therefore the cover by Chief Justice Roberts!
No way. No Supreme Court Justice would do such a thing.
How sanctimonious of JT, he comes to the same conclusion as NPR, “If this was a liberal, the effort to pressure the Court may have only reinforced the resolve of the majority to hold firm on the position from the Dobbs draft.” but all his evidence points a liberal on the court.
This court has become a joke. With Thomas flouting any sense of decorum at all and Alito on his high horse blaming “liberals” for the leak. And then there is Roberts, refuses to discuss ethics with the Senate. Perhaps there are no ethics in the court so what is there to discuss.
JT claims “I criticized Totenberg’s claim [that “the only [theory] that makes sense” is that a conservative leaked the opinion] as entirely unsupported and illogical.” Clearly her conjecture isn’t illogical since JT concludes that the leak “may have only reinforced the resolve of the majority to hold firm on the position from the Dobbs draft.”
“this was a crushing blow to the Court and its traditions of integrity…”
What tradition?
Harlan Crow has given Clarence and Ginni Thomas expensive vacations and donated hundreds of thousands to a group that employs Ginni. Roberts’ wife gets millions for placing lawyers at top firms. Gorsuch omitted info about his property sale to the head of a law firm that been involved with almost 2 dozens cases before the court subsequent to the sale.
Anonymous – Wives have their own careers these days. If they have businesses that render services, even charitable services, it is legitimate for them to obtain money. They may even make more money their husbands.
As to Gorsuch, there is no reason he cannot sell a property a current market value to a business that has cases before the Court. It appears that Gorsuch was only a 20% owner of the subject property and that the buyer has never appeared before the Court.
https://www.abajournal.com/news/article/biglaw-ceo-bought-property-partly-owned-by-gorsuch-the-buyers-name-wasnt-disclosed
The ABA Journal article says:
“Greenberg Traurig CEO Brian Duffy contracted to buy a property partly owned by Justice Neil Gorsuch nine days after the former appeals judge’s confirmation to the U.S. Supreme Court. Duffy and his wife paid $1.825 million for the home northwest of Denver on the Colorado River. Since then, the article [in Politico] reports, Greenberg Traurig has been involved in at least 22 Supreme Court cases, including cases in which the law firm filed an amicus brief.
Gorsuch had a 20% interest in the property, which was owned by a limited liability company called the Walden Group. Gorsuch disclosed that he made between $250,001 and $500,000 in income from the Walden Group, but he didn’t disclose that the reason was a real estate sale and didn’t identity the purchaser.
Duffy told Politico that his firm’s ethics department greenlighted the purchase after he learned that Gorsuch was one of the owners and sought a review. He has never argued a case before Gorsuch, has never spoken to him and has never met him, he said.
It is reported that the firm that bought his property has had 12 cases before the Court and prevailed on eight, while losing four.”
So, the Gorsuch “scandal” is nothing.
It appears that there is currently an effort by left-wing groups to target the Republican appointees to the Court, just as they were the target of intimidation this past summer after the Dobbs leak. It must be that the Left is trying to scare these justices into “mending their ways” or even to encourage them to resign.
So why do you think Clarence Thomas originally failed to disclose his wife’s income, despite it being required on the disclosure form that SCOTUS claims to abide by? He had to amend his disclosure. And Gorsuch omitted the buyer from his disclosure about the sale of the property, despite that being required.
Anonymous – Even if both of these assertions are true, they hardly prove corruption. Even justices make mistakes in filling-out forms. I’m going to assume that there is no case you can identify in which the money received by Thomas’s wife created any conflict of interest for Thomas. As for Gorsuch, I doubt that you can show how the identity of the buyer affected any decision by the Court. These purported instances of “corruption” by the Republican appointees pale in comparison with the close working relationship of Franklin Roosevelt and Felix Frankfurter during the time that Frankfurter was on the Court. Frankfurter frequently advised Roosevelt on political matters. See Roosevelt & Frankfurter: Their Correspondence, 1928-1995 (Little Brown & Co. 1967). It has already been mentioned by another commentator that Abe Fortas and Lyndon Johnson also had an onging political relationship during the time he was on the Court. These kinds of relationships can cause conflicts for the respective justices in many cases involving the federal government. After all, they could be reviewing policy decisions which they recommended or the acts of personnel whose appointments they recommended.
The Left have no use for women other than to sterilize them, use them for their own selfish pursuits and prop them up as talking points much like they do with immigrants, the poor, minority groups and gays/lesbians. The Left has no regard for life, which is why when caught at inciting violence to assassinate Catholic SCOTUS Justices, they adopt DARVO: deny, attack, and reverse victim and offender
They are frauds
For all we know, Alito was the one who leaked it, and he did so to accomplish what the leak accomplished: to lock in the opinion and the votes.
For all we know anyone in the world could have done this. It is sounding more and more like ATS lying and deceiving as usual.
Logically, lie detector tests should have been administered to ALL the clerks. Was that ever done?
The problem with lie detectors is that they can be wrong and they can be manipulated by a sociopath/antisocial which kind of negates their effective use on the person/attorney who did this.
Civility? Surely you jest Mr Turley. Well, let me clarify: Civility is only a requirement from conservatives. Certainly NOT a requirement of leftists or the pro-abortion croud.
Wow! That means the Supreme Court and the Biden Admin. have known for months who did it but collectively (9 Justices, DOJ and Biden) decided to supress the news and avoid prosecution of the wrongdoer. That means, in turn, that the Justices know that the culprit is a dissenting Justice who will be made into a hero by the Democrat Party and its media agents. That means the leak was a conspiracy among Democrats and the culprit is a politico on the Court, either Ted Kennedy’s agent, Breyer, or Obama’s agent, Sotamayor, and/or their law clerk.
Julian Assange, who opposed the Democrat Forever Wars, now lives in hiding and is hunted by the Biden FBI/DOJ Democrats. Mark Feld undid Nixon and was protected for decades by the Democrats and the media. Breyer/Sotamayor will be protected by the Democrats, too, as one of theirs who did their dirty work.
Sir, the system is already corrupted. As an example of activist lawyers here are two words. Alvin Bragg
yet the Supreme Court after an exhaustive investigation with only nine Supreme Court justices, and a few clerks cannot identify the leaker of the Dobbs decision. Something doesn’t smell right.
I knew instantly Roberts was never going to name the leaker.
Roberts is the MOST political Justice in by adult lifetime. Naming the leaker does not support Roberts carefully stage crafted perception of ‘The Court’.Every move of Roberts, every statement, every tweak of his eyebrow is to convey his vision, that ‘The Court’ is not making decisions based on ideology.
Roberts was desperate to move past this bump in the road, so he could get back to propping up his phony narrative.
This is one of two obvious “mysteries” in DC that have answers, but the DC swamp want the public kept in the dark
The other is who placed the two supposed “bombs” Jan 6th. A reminder. The bomb placed outside the DNC;s back door in plain sight under a park bench, was missed by a Secret Service sweep before VP Harris showed up for a visit.
To the woke Democratic left, the end justifies the means when you are talking about blocking a conservative issue. Violating long standing rules of professional ethics, while despicable in my opinion, isn’t a problem for these folks. They are heroes to the cause. They truly don’t care. Thank you, Jonathan, for an excellent article.
Some of them care about the unborn.
I mean Alito leaked the Hobby Lobby decision. Maybe he should remove the plank in his own eye first before spouting off rampant speculation.
He did not leak the draft opinion.
A leftist anonymous has libeled Alito. He will not prove it, but this shows the leftist anonymous posters will knowingly lie. If the post disappears then it could have been Bug. The remaining post odds on favorite is ATS.
The public should be told who and ensure it never happens again. It is a small step in getting faith back in our government.
If Alito names someone and doesn’t have evidence beyond a reasonable doubt, he’ll be sued for defamation.
There were three natural suspects who weren’t asked to sign any affidavit. If I could find out whether Alito continues to circulate draft opinions to all members of the Court or whether he somehow leaves one off the circulation list, I’d know the answer.
How do you know that 3 “natural suspects” were not asked to not sign affidavits? Who were the three? Did the 6 others sign?
There were three natural suspects who weren’t asked to sign any affidavit.
Who are these three people?
Based on the rest of the comment, wiseoldlawyer is referring to the 3 liberal Justices.
You may be right but I seriously doubt any Supreme Court Justice, liberal or conservative, would leak a draft opinion.
A friend of mine who recently retired from her position working at the SCOTUS as a senior secretary to one of the judges told me that they have known for some time who did it, that it was someone from the office of the recently retired liberal judge, Stephen Breyer. She wouldn’t name him, and I’m not entirely sure she knew the name, but it was out of that office.
“Breyer warns justices that some opinions could ‘bite you in the back’ in exclusive interview with CNN’s Chris Wallace”
CNN
September 23, 2022
Canuck – I didn’t know retired Justices had staff. But that is a pretty sensational inside scoop if it’s reliable!
It’s reliable, as far as it goes. However, there’s no indication that the individual name is known, and my friend doesn’t know it.
Canuck – Even without a name it would be extremely interesting to know if the person Alito has in mind is or was on Breyer’s staff at the time of the leak. But I doubt Alito would even say that much until he’s certain about the person he has in mind and can prove it.
I suspect that you are correct about that.
You are beating a dead horse!
Your friend don’t need to name HER, because two days after the incident SPECULATION got viral [1]. A day earlier, another name was circled. All that occured short of ONE YEAR!
[1] https://twitter.com/willchamberlain/status/1521685968939630592
[2] https://twitter.com/MattWolking/status/1521303528421171203
Wouldn’t name HIM, or wouldn’t name HER?
Did not even make any reference to the persons sex. But I do understand why you’re asking. She did specifically reference Breyer’s office
What straight-thinking person would credit Nina Tottenberg? Just a joke – as are those of her ilk at NPR (the taxpayer supported fake news business).
tennants – among NPR reporters Totenberg has excelled for over 30 years in being annoying.
National Welfare Radio – National Welfare “Reporter”
The depths of depravity that these liberals are willing to go to is stunning.
A national air guardsmen is arrested three days after the dissemination of classified information. This is information that literally tens of thousands of people had access to -yet the Supreme Court after an exhaustive investigation with only nine Supreme Court justices, and a few clerks cannot identify the leaker of the Dobbs decision. Something doesn’t smell right.