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Supreme Court springs a brand new leak with Roe in the balance

There are occasional peeks behind the Supreme Court’s curtain, but three leaks in nine days about a historically significant pending case is extraordinary.


The original leak came nine days ago. On Monday, May 2, Politico reported on a leaked draft opinion from Justice Samuel Alito leaving little doubt that Republican-appointed Supreme Court justices were prepared to overturn Roe v. Wade.

Five days later, there was another leak. On Saturday, May 7, The Washington Post reported on the justices’ private deliberations surrounding Dobbs v. Jackson Women’s Health Organization, the pending abortion case. According to the article, Chief Justice John Roberts proposed a middle path of sorts — he’d uphold the Mississippi anti-abortion law, but leave the Roe precedent in place — but he found no takers.

The reporting added that, as of last week, “the majority of five justices to strike Roe remains intact.”

This morning, the high court sprang yet another leak. Politico reported:

Justice Samuel Alito’s sweeping and blunt draft majority opinion from February overturning Roe remains the court’s only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes.

The reporting, which has not been independently verified by MSNBC or NBC News, added that Roberts’ earlier decisions in support of the Affordable Care Act remain politically relevant now.

Politico quoted an attorney close to several conservative justices saying, “There is a price to be paid for what he did. Everybody remembers it.”

As is always the case, the substance of revelations like these is what matters most — and in this case, the real-world significance is dramatic. If Politico’s reporting is accurate, and the publication’s scoops have been reliable to date, the conservative bloc to curtail reproductive right remains intact.

There were hopes in some circles that Alito’s radical draft opinion might lead to the circulation of alternative drafts, but apparently that hasn’t happened, reinforcing impressions that the Roe precedent’s days are numbered.

As for the idea that Roberts’ ACA rulings are somehow relevant, and other Republican-appointed justices are ignoring him now as part of some kind of retaliatory move, it suggests a degree of corruption in conservative jurisprudence that’s tough to defend.

But it’s also amazing that Politico’s report exists.

There are occasional peeks behind the Supreme Court’s curtain, but in general, leaks like these simply do not happen. The fact that the institution is suddenly leaking like a sieve, about a case of profound historical significance, is stunning.

As for the sources of the leaks, it was obvious that the Post’s scoop was based on a leak from the right, and it seems equally clear that Politico’s newest scoop also came from the right.

And while many Republicans have insisted that the initial leak must have come from the left, NPR’s Nina Totenberg made the case a few days ago that the only theory “that makes sense“ is that the original leak to Politico also came from a conservative.

Update: A couple of readers reminded me that there was also an apparent leak to The Wall Street Journal's editorial board two weeks ago, with behind-the-scenes details about deliberations in the Dobbs case.