In early May a draft of the Dobbs decision overturning Roe v. Wade was leaked. Chief Justice Roberts responded with outrage, and charged the Sergeant at Arms of the Supreme Court with investigating the matter. At the time I predicted the leaker would quickly be found. I was wrong. To this date no one has been publicly identified as the leaker. That now appears to be a consequence of a deliberate cover up of the guilty party, a cover up that includes Chief Justice Roberts himself. The leaker was Justice Samuel Alito, and Chief Justice Roberts is protecting his conservative friend.
At the time of the leak two competing plausible theories emerged as to who was responsible and the motives for the leak. Conservatives alleged that a court liberal leaked the draft in the desperate hope that the backlash would switch votes and change the results. If that was the purpose it failed miserably. When released in late June the same 6–3 majority present in the draft reversed Roe and with barely a word changed from the draft.
Liberals argued the leak likely came from conservatives and was designed to freeze the majority opinion. By leaking it, Justices could not change their mind as it would look like they succumbed to political pressure. As described above, if this was the purpose it worked quite well. Even easily criticized language in the draft, citing as authoritative a man who hung witches, was retained in the final opinion.
New evidence has emerged suggesting the liberal argument was correct. The leaker of the Dobbs decision was its author, Justice Alito. You see, he has done this sort of thing before. It even involved a case relating to women’s reproductive freedom.
In 2014 the Supreme Court decided Burwell v. Hobby Lobby, ruling that private corporations could not be required to include contraceptive care in their health insurance plans mandated by Obamacare. While he did not provide the full text, as was done with Dobbs, weeks in advance, Justice Alito leaked the results of that decision to a friend of pro-life evangelist Rob Schenck. Schenck’s organization used this information to prepare in advance a public relations campaign for what he knew would be a favorable to his side decision. He also tipped off the President of Hobby Lobby to the impending “good news.”
While Justice Alito denies responsibility, a now repentant Schenck has produced abundant emails suggesting that at the time he had advance knowledge of the upcoming Hobby Lobby decision. Witnesses corroborate that Schenck told them he knew the results of the decision before it was released. Justice Alito acknowledges being at the dinner where Schenck says the information was shared.
In July of this year Schenck wrote to Chief Justice Roberts advising him of Alito’s leak of the Hobby Lobby result eight years before. Schenck told Roberts he believed his information was relevant to the investigation of the Dobbs decision leak.
What did Chief Justice Roberts do? He sat on it. He covered it up. Schenck’s story comes not from the Supreme Court but from Schenck himself who went to the media apparently frustrated with the inaction from Chief Justice Roberts. Schenck has no reason to lie about this, his admission implicates himself in a sordid Supreme Court leak. However, he now acknowledges that what he, and Alito, did back then “was wrong.”
This information, and cover up of it, strongly suggests Alito is the Dobbs decision leaker, and that Chief Justice Roberts is protecting him. This scandal was largely lost in the news cycle, overshadowed by Attorney General Garland’s announcement of the appointment of Special Counsel to investigate Trump. It needs more attention.
Roberts has expressed concern with a growing loss of legitimacy for the Supreme Court. Increased use of the shadow docket, Justice Thomas deciding January 6 cases involving his own wife, and the cover up of an unprecedented leak, justify challenging the legitimacy of this court.
