WASHINGTON WATCH: Who Was the Supreme Court Leaker? Chief Justice Roberts
The overturning of Roe would overturn all that Roberts has worked for
"The lady doth protest too much, methinks”
— “Hamlet,” William Shakespeare
First there was the bombshell — the political explosion which suddenly makes very real something that's been maybe hypothetical, at best, for decades.
Politico late Monday published a draft opinion, written by Justice Samuel Alito earlier this year, which would — in full — overturn the past decisions of Roe v Wade and Casey v Planned Parenthood. Four of the Supreme Court's Republican nominees had signed onto the draft, meaning that — as is — the high court is set to completely nullify the national right to abortion enjoyed in this country for nearly a half century.
The political implications are enormous, particularly for Democrats, who now have a salient and popular issue to rally voters in what before would have been a disaster of a midterm election for them in November. Opinion poll, after opinion poll, prove that large supermajorities of Americans do not want to see the Supreme Court overturn the right to choose.
But in Washington DC, the press loves nothing more than good gossip. So here, we're already moving on to the juicy game of, “Who's the leaker?”
That most inside of Washington political institutions, Morning Joe — ironic, given that the two main co-hosts bring us their program from a very faux-Washington set at their home in Florida — already have devoted at least one full segment on this inside-the-Beltway “whodunnit.”
But, for this mystery, the classic line isn't, “The lady doth protest too much.”
Rather, we must change it to, “The chief justice doth protest too much.”
Yes. I have no doubt in my mind that Chief Justice John Roberts engineered this leak.
“Why?” “How?” you must be asking.
After all, it was Roberts who just denounced the leak as “singular and egregious” in forceful, stern and righteous terms.
No, Roberts is almost certainly the leaker, and his statement Tuesday was that example of protesting “too much.”
Yes, the draft’s leak was nearly unprecedented, and a breach of tradition for the court, but it's not really illegal. And, if it was somehow technically illegal, it certainly wasn't a very serious law.
Draft Supreme Court decisions are hardly classified documents. They're not “Top Secret,” and the security around them is minimal.
There's little to actually prosecute here.
“The fact that the marshal is doing it suggests they are treating it like an ethical and employment issue," David Lat, the author of the Original Jurisdiction newsletter and a close Supreme Court observer, told a reporter.
In other words, the probe Roberts ordered is really just for show.
It's Roberts just trying to get ahead and keep the stink of suspicion off of him.
As to the chief justice's motivation for something as unprecedented as actually leaking the draft?
It's actually pretty clear.
Yes, Roberts is a conservative.
But, more importantly, he is an institutionalist. That his name is nowhere near the Alito draft is testament to that.
He seems to sincerely care that the broad public see the Supreme Court as a fair and impartial institution — especially on his watch.
Roberts is acutely concerned about how both he and his “Roberts Court,” are someday portrayed in the history books.
This is why he took pains — and some argue legal knot-tying — when he provided the crucial vote to save President Barack Obama's landmark healthcare reform law when it came before the court.
And largely why Roberts began surprising legal observers in recent years when he sided with the minority liberals on decisions both big and small.
He apparently really was displeased a few years ago when Donald Trump's attack on a federal judge as an “Obama judge,” the jurist who struck down his migrant asylum ban, and in doing so, raised Roberts’ ire.
Roberts wants mightily for the court — his Supreme Court — to avoid just the kind of sweeping, partisan rulings which Alito is pushing with this draft.
It's likely that Roberts has already brought the four justices who signed on to the Alito draft, to his office for a fatherly talk to try to convince at least one of them that this decision is a mistake and that they should switch their vote.
And, it's just as likely that Roberts failed in that attempt.
Roberts, understandably, figured that his options to stop this hyper-partisan bombshell were growing non-existent.
All he had left was a good, old fashioned public shaming. After all, each and every one of those justices on the Alito draft — including Alito himself — are literally on record all assuring senators during their respective confirmation hearings claiming that Roe v Wade was “settled law.”
So he leaked the documents, and let the press, politicians and the public do the rest.
Since the leak broke, the cable networks have been playing the justices' Roe v Wade “assurances,” on a near-endless loop.
(Late-night host Stephen Colbert has been particularly scathing when it comes to skewering the justices for essentially bald-face lying to senators and the American people. His producers put together a particularly good package for Colbert's Tuesday show, running each justice on tape, verbatim. To see it, click the video and go to about minute-mark 4:40 or so.)
Roberts, no doubt, is hoping that under this kind of scrutiny — and with their own words about Roe being played back to them nearly ad infinitum — at least one of the justices has at least some shame and some semblance of a conscience.
Roberts is hoping that at least one has a twinge when they hear their promises about leaving Roe-as-precedent on TV, causing them to buckle and change their vote.
So let the public shaming continue, and we'll see if even one of them has an ounce of integrity.
Do you find this post of value?
Please consider supporting our work by joining our Patreon for as little as $5…