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.
Once again, it has been shown that lawyers are disloyal to the organization from which they receive money (including considerable career opportunities) and this remains without any consequences.
One year ago today, “POLITICO” headlined: “Supreme Court has voted to overturn abortion rights, draft opinion shows” and 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.
The three Democratic-appointed justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.”
Our host wrote on his twitter account: “I have previously heard that the Court had a particular individual in mind. There has even been a name referenced privately.” and added innocently: “If this was a clerk and the evidence is known to all of the justices, […]”
What we know: Leaker
* is known by head author as trustworthy (rest of SCOTUS didn’t kow about article in advance, therefore no due dilligence)
* has inside knowledge about SCOTUS deliberations
* hides in the shadows & does not want to be discovered
* took elaborate measures to protect anonymity.
What anyone who wants to can tap into:
* Headauthor wrote several pieces with a national political reporter who covers Trump & “Make America Great Again” (e.g. “Dems press feds to evict Trump from D.C. hotel” on 14/12/16. “Feds approve deal to insulate Trump from Post Office hotel” on 3/23/17).
* This writer is married to […] who is one of four law clerk of now retired Justice […] since 7/21
* The Yale JD formerly clerked for […] and published about abortion law in journals and MSM.
Each Law Enforcement Unit can continue to work with this information: If it only wants to!
I thought it was a guy who worked for Sotomayor, who went back to India afterwards.
Who leaked the draft is almost a forest for the trees argument. I don’t think most people on our side appreciate how big the overturning of Roe was. It is going to have massive and **escalating** political repercussions for decades, and will not simply fade into the background they way most legal decisions do.
I have been a lawyer since 1970. I have appeared befoore the US Supreme Court. While I agree that the social consequences of Dobbs are enormous and as yet unpredictable, I do not agree that ANY other (let alone “most”) Supreme Court decisions on matters of constitutional law “simply fade into the background.” All of those decisions, even the many bad ones (and many are very bad,) live on and affect current decisions as precedent, unless and until the Court kills its monsters, as it did with Roe and Casey in Dobbs (albeit the Dobbs Court failed to address the essential constitutional issue of the prenatal infant’s right to life and equal protection under the Fourteenth Amendment.)
Paladin – I didn’t realize the issue of the prenatal infant’s right to life and equal protection under the Fourteenth Amendment was raised in the case. Are such persons within the scope of Section 1 of the Fourteenth Amendment? I ask mainly because of the “persons born” language with which that provision starts. I’ve not heard anyone talk about that, but it does raise a question in my mind.
The issue of whether a prenatal infant is a “person” under the 14th Am. was justiciable in Dobbs, although, unfortunately, neither the appellant nor the appellee raised it and Scotus did not address it. The question was raised in an amicus curiae brief filed by Professors Robert George of Princeton University and John Finnis of Oxford, which discusses their significant scholarly research showing that the framers of the 14th Am. considered a prenatal infant to be a “person” entitled to its protections. Here is a link to their important amicus brief. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3955231
That matter must eventually be decided by Scotus, but the Court is likely to evade it for many years, unless the baby killers back off or John Roberts is replaced on the current Court by a true constitutional originalist, so that Scotus will grant certiorari on an appeal of a lower court decision of the issue.
I would also note that the question of whether a prenatal infant is a constitutional person was explicitly raised by Scotus during oral argument in Roe vs Wade but evaded by Justice Blackmun’s wretched legal opinion for the majority. I had graduated from law school just a few years before the Roe decision and found it intellectually deplorable and professionally embarrassing that the majority opinion in such an important case was so constitutionally irrational and poorly written that most Con Law prof’s at the time would very likely have given it a failing grade. My later research on the matter covinced me that my condemnation was not nearly adequate to the matter.
Paladin – Thank you for the link to the amicus brief above. I’ll have to read that carefully over a few days to get an understanding of the argument concerning Amendment XIV and personhood.
I went to law school after you – I went mid-career – and for con law I also (of course) had to read Blackmun’s legislation, er, opinion. I too was incredulous at how poor the legal reasoning was – if it can even be called that. Clearly he just decided for personal reasons he wanted a constitutional right to abortion, and backfilled as necessary to get there. And the shame is six other Justices joined the piece of trash opinion.
Blackmun was a judicial joke, and his opinion was a legal disgrace. In Roe he met ex parte with officials of Mayo Clinic (which supported a right of abortion and for which he once worked,) and in his opinion for the Roe majority he took judicial notice of Mayo’s ex parte and false assertions that the Hippocratic Oath was inapplicable to abortion situations. The 7-2 majority included 5 justices appointed by Republicans (one was Brennan, an inexplicable appt. by Eisenhower.) The dissent was Rehnquist, newly appointed by Nixon, and White, a JFK appointee. Beside Blackmun, the majority was comprised of other notorious judicial lightweights, like Stewart, Powell, Douglas, Marshall and Burger (who later recanted his Roe error.)
The pro-life movement needs to change its message.
As the pro-abort messaging of today states the mother is losing her right to abort her unborn child.
The new messaging needs to be about providing the unborn w their constitutionally guaranteed human right to exist.
Through history the Civil War was framed as ending slavery, but in fact, it was about providing slaves their constitutionally guaranteed human rights.
This analogy to slavery is a winner in my opinion.
This augment does not fall into the trap of denying women a right.
This augment is an affirmation of the unborn’ constitutionally guaranteed human right to be born.
It is late; I’m hoping I made this understandable.
Who leaked the draft is almost a forest for the trees argument.
I respectfully disagree. It was a crossing of the rubicon, unprecedented. It led to the attempted assassination of Justice Kavanaugh. It put all the conservative Justices in physical danger at the very time the DoJ had become so partisan and corrupt it would not enforce federal law against the persons who were clearly trying to intimidate them into changing their vote.
As I said: denial that the leaker is or could readily be known is willing disbelief or inexcusable naivety or utterstupidity.
Oh I don’t deny at all that the leaker could easily be found out. When CJ handed the investigation to the Marshall, that telegraphed to the world he had no interest in getting to the bottom of it. It was one outrage after another. And then that followed by the outrage of the feds doing nothing as angry mobs descended on the homes of the Justices to intimidate them – and one even tried to assassinate J. Kavanaugh.
Nothing is beneath a Leftist, no matter how loathsome, depraved, debauched, unethical or immoral the act. Remember that it was Leftists who murdered 100 million people via Communism. The body count is still increasing in the US.
Let’s be honest, the “Marshal of the Supreme Court” is either incompetent or corrupt…
SCOTUS Marshal main duty is to police the building and protect the Justices, employees, and visitors.I would rather ask why Chief Justice assigned this unit to investigate “the extraordinary betrayal of trust”. Former Sec of Homeland Security Michael Chertoff (R) was also involved in this 3/4y audit. It looks like that not only Chief Justice but also MSM ary happy with the result. If those who are unhappy with the outcome, they found enough evidence from which corner the leaks originated, the day after POLITICO broke the story. One should also not overlook the fact that the group that was involved play carom billard on a very high level!
I am simply unable to accept the absurd notion that the FBI, Congress, the DOJ and 9 Justices could not investigate and draw sufficient evidence to identify and prosecute the leaker. It would require extreme naivety or utter stupidity or shameful willing disbelief to arrive at any conclusion other than that the case was buried (probably with CJ Robert’s blessing.)
Let Law Rest on its Laurel
Since the authorities decided from the beginning not to pursue the breach of the law, it was easy to take paths that lead nowhere!
“to arrive at any conclusion other than that the case was buried (probably with CJ Robert’s blessing.)” or
From the beginning, the cases were buried with the knowledge and desire of the Chief Justice (there were at least two different leaks the time POLITICO broke and another one two weeks later).
What would have changed if he had shared the clues with the FBI? Anyone one who wanted to know knew how the wind was blowing!
Just read this story: Dobbs was probably leaked by Sotomayor. https://theaspenbeat.com/2023/04/30/dobbs-was-probably-leaked-by-sotomayor/
While I can’t rule out Breyer because of his strong leftist political roots, Sotomayor seems to be the only Justice with both a criminal heart and personal contempt for her opponents.
She strikes me as low class trash, a complete ideologue and surprisngly stupid. That she was an Obama acolyte reaffirms my description and suspicion.
Kagan is just as likely a suspect.. for obvious ‘ethnic’ reasons.
I don’t know who for a fact, but some facts were reported early on. I have no way of corroborating the facts, so you be the judge.
First, the leak was to a Politico “journalist”.
Second, a clerk to a leftist Justice is married to that same “journalist”.
Highly suggestive, in my opinion.
“a clerk to a leftist Justice is married to that same “journalist””
Doesn’t meet reality!
Oh what a bunch of grandstanding malarkey!! The legal system is totally corrupted, as is proven in any one of a number of papers that I have written on the subject! Such as The Legal System Is Even WORSE Than Gambling!, Any Person Subject To…, The Holes In The Legal System, The Scam Of The Legal System, Is Someone Shopping Around For A Friendly Judge?, The Three Magic Questions, Dissection And Analysis Of Standing And Jurisdiction, Pulling The Teeth Out Of The Mouth Of The Legal System and several others too.
I don’t believe Turley can interpret well or “READ THE LEAVES” so to speak, it is pretty apparent, via a guy (me) who has been solving End Times Prophesies for 38 years that he gave away who leaked the S.C. Documents, he stated it put all 5 of us in danger, he did not say 6, and we know in the end the decision was 6-3, so why leave Roberts out? Because he LEAKED IT, trying to get a politically compromised agreement out of the 5, after he failed to do so he voted with the Majority.
I don’t believe it was Roberts. Alito’s statement about 5 versus 6 was not pointing a finger at Roberts. Roberts was against the Alito opinion from the start and wanted Alito to modify it, but Roberts would not leak an opinion to bring that about. Alito’s 5 versus 6 comment is just talking about the four justices plus himself that agreed with the opinion.
I do believe, though, that Alito’s statements point directly to one of the justices – Sotomayor. The clerks can go on to very high paying jobs and would not risk a lucrative career over a leak. Sotomayor has nothing to lose sine she can’t be removed even if she admitted doing it. And of course, the person leading the investigation, Gail Curley, said they could not find the leaker because she is employed by the justices and no employee is going to accuse their bosses of doing such a thing. I’m sure Roberts knows it was Sotomayor.
Gabby – that would be extremely sensational if it is Sotomayor, but I doubt she’d do it. Maybe it’s just me but I can’t imagine any Supreme Court justice, liberal or conservative, would knowingly leak an opinion. As far as “she can’t be removed” – couldn’t she be removed through the impeachment process for that? But I ask you – do you have anything more than speculation to believe it is her?
No, she doesn’t!
One of her clarks was singled out the day ofter POLITICO broke the story: The lead author quoted him (blasted his alma mater for supporting Brett Kavanaugh’s SCOTUS nomination) in a “travel ban” piece (2/22/17). Those familiar with the matter know that it’s fabricated!
“The clerks can go on to very high paying jobs and would not risk a lucrative career over a leak.”
Those who made it to a SCOTUS clerk don’t play the babe in the woods. They are covered by substantial insurances
“I’m sure Roberts knows it was Sotomayor.”
Your assumption doesn’t pass the lithmus test. If Roberts would be interested in catching those who leaked, he would have taken measures that led to the resolution of the case in a few days.
“why leave Roberts out”
The ruling in support of Dobbs v. Jackson was 6-3, while the ruling overturning Roe v. Wade was 5-4.
If restricted abortions cause death to women we can all be somewhat relieved that the numbers can now be improved due to sharing with bio men. Also, why not just leak who the leaker is. Seems fair.