The logic as to why a conservative and not a liberal is probably to blame for the leak stems first from our knowledge that Chief Justice Roberts was, at the time of the leak, still trying to convince at least one other member of the conservative majority to support a more measured decision that would not have overtly overruled Roe but that would have upheld Mississippi’s 15 week abortion ban.
For those who recall, this is highly similar to what we saw happen with the Obamacare decision. In that instance, Chief Justice Roberts cobbled together an unlikely majority of liberal and conservative justices to ultimately uphold major parts of the law that Republicans hated so much. It is for this reason that Roberts has been seen by many Republicans as a traitor to the cause, a sentiment that the conservative justices on the Supreme Court itself seem to share.
Understanding that Roberts was again seeking to deliver a compromise opinion that would have again disappointed Republicans, we can clearly see that conservatives in the know had plenty of motive to act. They could either sit on their hands and hope that Roberts would be unable to peel off a conservative justice from the majority as he had done before, or they could seek to take action that would make this feat far harder to pull off. With all of that in mind, one should also consider that leaking the opinion makes perfect sense if your ultimate aim was to stop Roberts from being able to succeed on this front, while it makes almost no sense for someone who would want to save Roe.
By leaking the draft opinion of the Dobbs decision that Justice Samuel Alito was authoring, the one that had the names on the five conservative justices who had already signed on to it, it made it very unlikely that any of those justices would later be able to change their votes. Were any of them to vacillate after the leak, doing so would expose them to the rather obvious criticism that their ultimate decision was driven more by politics than it was by any coherent legal framework. In essence, leaking the opinion made it nearly impossible for any of those five justices to change their minds.
Anyone who has a good enough legal mind to be on or clerk for the Supreme Court would undoubtedly understand this, be they liberal or conservative, and so it seems highly unlikely that a liberal with access to that draft opinion would want to leak it given how doing so would effectively eliminate all hope of what they would perceive as a last second save from a disastrous decision. Like a bucket with no bottom, the argument that the leaker was hoping for public pressure to change the minds of the conservative justices just doesn’t hold water.
Lastly, let’s also dispel the false notion that this leak was in any way unprecedented. Justice Alito, the author of the Dobbs decision, is now outright lying when he said that “nothing like that had happened in the past” when referring to the leaked Dobbs opinion. In truth, many other Supreme Court opinions have leaked before they were made public. This includes a landmark case that seems almost too on the nose to be true but is Roe v Wade.
Nicholas Creel is an assistant professor of business law at Georgia College and State University.
The views expressed in this article are the writer’s own.
