Who Leaked the Dobbs Draft? | Opinion

Nearly four months have passed since the leak of Justice Samuel Alito's opinion in Dobbs v. Jackson Women's Health and we're apparently no closer to knowing who did it and how. We also don't know why the leaker did it, though that's probably less important for repairing the damage done to the Supreme Court. Of course, if the most likely explanation is true, that a left-wing clerk was trying to shame one of the members of the majority to pull back from overturning Roe v. Wade, then the gambit backfired spectacularly, instead steeling the Justices' spines—and thus could serve as an object lesson to disincentivize future leaks.

This isn't just a parlor game, some judicial version of Clue ("A Sotomayor clerk using Signal on a burner phone"). It's not about filling in a footnote for future law review articles or some history book written 50 years hence. It's about enforcing consequences for an unprecedented hit to the Court's legitimacy.

Many on the Left argue that Dobbs itself did more damage to the Court than the leak—not to mention decisions like Bush v. Gore, Citizens United, and Shelby County v. Holder (that is, the pantheon of progressive disappointments from the past quarter century). But that's partisan hackery. If every "big" decision you don't like is a threat to the republic—or at least to one of its three branches of government—then you're making disagreements over legal interpretation or policy into regime-threatening events. In fact, Harvard and Yale law professors apparently think it's time to throw out the Constitution because they can't get their way in the judiciary for the first time since before the New Deal.

Regardless of what you think the ideal abortion policy should be, the leak complicates the Court's role as an independent check on the excesses of the political branches—and of state legislatures for that matter. If you're concerned about the loss of norms and societal trust in our populist moment, you should care about the attack on one of the few institutions equipped to serve as a breaker against the mob.

As we see from congressional dysfunction, where members put a premium on communications staff over legislative aides and the main point of hearings is to create video content for fundraising emails, judicial deliberations can't be conducted in the open and critiqued midstream like electoral horse races.

U.S. Supreme Court abortion protest
WASHINGTON, DC - JULY 11: Activists with NextGen America place chrysanthemums in front of the U.S. Supreme Court on July 11, 2022 in Washington, DC. The organizers placed the flowers to symbolize the number of people the group believes will die as a result of the Dobbs v. Jackson Women's Health Organization decision. Anna Moneymaker/Getty Images

The Court simply can't function if Justices can't trust their colleagues to maintain confidentiality or police their clerks. "When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally," explained Justice Clarence Thomas back in May. "You begin to look over your shoulder. It's like kind of an infidelity, that you can explain it, but you can't undo it." Indeed, we've seen further reporting about the tensions at the Court, including mistrust among chambers and public statements from Justices about how difficult the last few months have been.

And that's before even getting to security concerns. Leftists are rightly aghast at threats to Magistrate Judge Bruce Reinhart, who approved the warrant to search Mar-a-Lago, but turn a blind eye to the protests outside Justices' homes and an assassination attempt against Justice Brett Kavanaugh. Maybe if Attorney General Merrick Garland agonized as much about his responsibility to preserve the integrity of the Supreme Court—both literal and metaphoric—as about approving the raid of Donald Trump's residence, we'd get somewhere with the leak investigation.

Of course, the Justice Department can't be faulted for not caring enough about the leak if Chief Justice John Roberts and Supreme Court Marshal Gail Curley aren't keeping their own eyes on the prize. Did they obtain the phone records and emails of all clerks? Did they pursue those materials through other means if the clerks balked? Did they have all clerks, before ending their service at the end of the term, sign affidavits swearing that they didn't leak? (Although it's unclear whether the leak could subject someone to criminal prosecution, lying on such an affidavit would be a separate offense.) If the answer to any of these questions is no, why not?

At base, the leaker must be found to avoid setting the precedent that decision drafts can be leaked with impunity. Such a precedent would threaten confidence in the Court at a time when public approval is relatively low (but similar to the wake of the Obergefell v. Hodges same-sex marriage decision in 2015). It's one thing to disagree with a ruling, quite another to facilitate real-time second-guessing of judicial decision making.

The leak investigation has to be given priority. The leaker—whoever it is, however he or she did it, and whatever the motive—has to face the music.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, now out with an updated paperback edition, and writes the Shapiro's Gavel Substack newsletter.

The views expressed in this article are the writer's own.