As I wrote below, the rapid-fire follow-up reporting on John Roberts’ position on the Mississippi case, just hours after the Politico exclusive, made me think at the time that the leaked draft opinion wasn’t a one off thing. It seemed part of a larger breakdown of secrecy or on-going leaks tied to the Mississippi abortion case. You don’t come up with details about the Chief Justice’s position and arguments from internal deliberations on one of the biggest cases in decades in an hour and a half if you’re beginning from a cold start. Then this morning I found out about this Wall Street Journal opinion page editorial from April 26th in which they fairly transparently write about current Court deliberations in the Mississippi case, specifically that John Roberts was trying to pull an unnamed conservative Justice back from fully overturning Roe.

We can’t know for a certainty that this wasn’t just uncannily accurate speculation from the WSJ worthies. But this opinion piece didn’t come out right after the oral arguments in the case on December 1st when five conservative Justices appeared entirely ready to overturn Roe and Roberts seemed to be looking for a path to a more limited, though still restrictionist, opinion. That general dynamic was clear then — and probably could have been anticipated given Roberts’ recent history of mild heterodoxy from GOP priorities if not conservative judicial orthodoxies. But why the column in late April? And why the specifics? It certainly reads like the authors had an inside read on on-going deliberations and fears that Roberts might be in the process of sneaking a defeat from the jaws of victory.

Going to write more about this topic this morning after I finish up a meeting. But since writing the piece below I’ve put together new details which make it crystal clear the Alito leak came from the right and that it was part of a pressure campaign and series of leaks that were something of an open secret in the elite conservative legal world.

I guess others clearly had. But I had not seen this April 26th Journal op-ed about the jockeying on the Mississippi abortion case until now. It’s very, very clarifying.

After Politico’s exclusive on Monday night publishing the draft Alito majority opinion, CNN followed rapidly that same evening with very specific details about Roberts’ position on the case, resisting joining the majority opinion and perhaps trying to lure one of the five Justices to a narrower ruling. When that second story came out so quickly I said that it made me think that the breakdown of secrecy on this case went beyond the leak of the draft opinion. Reading the Journal op-ed from last week makes that basically a certainty.

I was very interested to get more details on this question. The parlor game of who leaked the opinion has largely been hashed out as if it had to be one of the clerks. But that’s not necessarily the case. There are support staff who also have access to the opinions. Josh Kovensky spoke to a number of recent clerks to understand just who works at the court, who has what access and who — or rather what class of court employee — would have been in a position to leak the document.

From TPM Reader JS …

I think you’re right on about the dynamics. To me the critical piece is where you say “codify Roe as of 2021”—so that means letting most of the post Casey laws stand. And then we’re into a problem. Some Democrats are certainly going to want something very maximal and others are going to give us the 50-point plan.

It would be nice to stick to something simple and effective. I think we’ll have an intra-party fight over this, of course. Because people want to believe it’s normal politics time and these fights are just what we need when facing an authoritarian takeover.

I was looking over some Senate races last night and I was reminded that it’s going to be a real challenge for Democrats to expand their Senate majority this fall. They’ll be happy just to hold it. We’re not learning anything new to recognize that Democrats face a very daunting midterm cycle. But I want to address a discussion that evolved over the course of yesterday as Democrats and Democratic officeholders reacted to the news.

Few people were more outspoken than Sen. Elizabeth Warren (D-MA) which is totally in character for her. She showed up at the protest outside the Supreme Court and she showed up on TV. She was in a fighting mood. I saw a lot of people saying, that’s what we need! And I agree. But I think there’s something else Democrats need even more: clarity.

It’s long been a truism that the precedents that would need to be toppled to overturn Roe v Wade would put in jeopardy or remove the underpinnings of rights to contraception, same sex marriage and a whole range of reproductive, erotic and matrimonial autonomy and freedom this country has long taken for granted. This is based on the jurisprudence of a “right to privacy” which is the basis of numerous court decisions going back to the 1960s. In a way it is antiseptic and structural. To do away with Roe you need to do away with the right of privacy and doing away with the right of privacy means a whole raft of other decisions fall. But reading Alito’s decision he didn’t want to leave it to that. He dismisses the privacy jurisprudence out of hand and then focuses his argument on these rights not being “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

The White House just released this statement about Roe. Here’s the text and then a few comments from me.

I wanted to do some initial scoping out of the implications of the overturning of Roe for federal politics — both the impact on elections and the chances of passing federal laws to codify Roe.

The first thing is that people will tell you that there’s no practical way a federal abortion rights bill can get passed. That is definitely wrong. Whether or not such a law happens is entirely up to the results of the 2022 midterms. And it doesn’t require heroic assumptions.

In the flurry of reactions to the apparent/reported overturning of Roe last night, I saw a campaigns analyst comment that the odds of the Virginia GOP scoring a trifecta (unified control of state government) in 2023 had fallen dramatically. The Democratic Governor of Pennsylvania, I’m sure along with others I haven’t seen yet, put out a statement essentially saying ‘no need to worry about abortion rights in Pennsylvania as long as I’m here’.