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.
It reads even more like that when you read the piece in the context of the subsequent leak.
But it wasn’t just me. This morning Sarah Posner flagged to me this post from conservative law professor Josh Blackman from the night the Politico piece was published. What’s even more interesting is that in that piece he links back to his immediate reaction to the Journal article from last week. That’s here.
What was Blackman’s real-time response to reading the Journal opinion piece last week? It’s right there in the title: “Has there been a leak?”
Blackman is a big advocate for overturning Roe. But that’s mostly neither here nor there for our present purposes. What’s interesting is that he’s written extensively about previous cases when Roberts nudged the Court toward less right-wing decisions and cases where there were leaks and pressure campaigns trying to prevent him from doing so. So Blackman is something of an expert on this on-going pattern and history. He seemed to spot it from his first read of the Journal editorial. Indeed, if I’m reading his piece correctly he seems to think the Journal may well have had a copy of the Alito opinion too. (To be clear, he’s not saying he knows that, just that he thinks it’s a possibility.) It does seem quite possible. Was Politico the first or only outlet to get the draft?
A bit more from Blackman’s real time response to the Journal opinion piece on the 26th …
Roberts “may” be trying to turn “another” (singular) Justice now? What do you say, WSJ? This seems like very, very specific information. Has there been a leak? And which (singular) colleague is Roberts trying to turn?
Indeed, look at what comes soon after. Pay particular note to the reference to the circle of conservative publications where members of the elite conservative legal world publish.
Since Dobbs was argued, I have been waiting for this sort of editorial in the Journal. Indeed, at an event last week, someone asked me about Dobbs. I said something to the effect of, “everything is quiet now, and I haven’t seen any evidence of leaks.” Now we have evidence. If there are other similar pieces in National Review and related outlets, we can have more faith that knowledge has leaked out.
As I noted below, I think we know now that news of these internal deliberations had begun leaking out into the right-wing legal/media world back in April and that there was the kind of expected pressure campaign to make sure the five Justices held firm. In that context, given the most likely impact of the leak, the unprecedented nature of it and the fact that reporters had such immediate access to other details about the deliberations, it seems all but certain that the leak of the opinion to Politico was part of that pressure campaign. That’s clearly what Blackman thinks. And he could see all the signs even before the Politico piece was published.