Does New Politico Story Give Hints As To Supreme Court Leaker?

When Politico claims to have inside access to Supreme Court dealings its credibility is bolstered by Politico having accessed and published a draft opinion written by Justice Alito overturning Roe v. Wade. Today Politico is out with a related, follow up story regarding the impact on the leak on the Supreme Court.

The substantive thrust of the story is that Politico’s connections within the Supreme Court confirm the Alito draft remains the only draft circulated and that none of the five justices committed to it have changed their vote. Does the Politico give hints as to where the leak came from? Maybe.

There are basic two competing theories as to who leaked the draft and why they did it.

Theory 1: Liberals did it to generate the storm of controversy and criticism, that we have indeed seen, in hopes of getting at least one Justice to change their mind.

Theory 2: Conservatives did it to lock in the five vote majority for the decision. Any Justice switching after the leak would look like they caved to political pressure.

Both theories seem plausible to me and I have previously avoided suggesting one over the other. The question is whether today’s Politico article hints in one direction or the other. While certainly not conclusive, I believe the article leans towards Theory 2.

There are a series of quotes I believe supports this. The first reads as follows:

POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes.

That suggests connections with the conservative side that would know this. Such connections are confirmed:

“This is the most serious assault on the court, perhaps from within, that the Supreme Court’s ever experienced,” said one person close to the court’s conservatives, who spoke anonymously because of the sensitive nature of the court deliberations. “It’s an understatement to say they are heavily, heavily burdened by this.”

To be sure, there is a similar quote about the liberal justices but this person is described as just “close to the court,” not necessarily to an ideology:

A second person close to the court said that the liberal justices “are as shocked as anyone” by the revelation. “There are concerns for the integrity of the institution,” this person said. “The views are uniform.”

Still, that suggest Politico has multiple moles reporting to it on the Supreme Court’s deliberations.

It is the final quote that seems most telling, for it ascribes a motivation, closely attuned to Theory 2. Politico describes how Chief Justice Roberts has generally sided with his fellow Republican appointed Justices, but that he has in a few cases been a deciding vote that switched the court’s decision to go against conservatives. Perhaps the biggest of these was on Obamacare where Robert’s vote to sustain the individual mandate “ruffled feathers” particularly because it was a last minute change of mind:

the Obamacare one ruffled the most feathers because Roberts reportedly reversed his position days before the decision was announced, ultimately voting to find the law constitutional.

“There is a price to be paid for what he did. Everybody remembers it,” said an attorney close to several conservative justices, who was granted anonymity due to the sensitive nature of the court’s arguments.

This suggests that the person responsible for the leak was once burned and is now twice learned. The leak secures two objectives. Payback to Roberts for his last minute flip on Obamacare, and locking in the conservative majority Alito currently has. If the Politico reporting is accurate, the leak secured both those.

I admit, this analysis has a certain reading tea leaves quality to it. As stated, the Politico report is not conclusive in this regard, and could even be a deliberate misdirection.

Enjoy your cup of tea, for whatever it is worth.