The bad news: the SCOTUS sieve continues to operate, leaking insider details in a disgraceful turn of events at the court. The good news, if there is any that’s reliable, is that the attempts to intimidate the Supreme Court after the leak of the draft majority opinion on Dobbs has failed so far.
In fact, if Politico’s sources are to be believed, it hasn’t even yet produced a dissent, let alone a competing majority draft for a different outcome:
Justice Samuel Alito’s sweeping and blunt draft majority opinion from February overturning Roe remains the court’s only circulated draft in the pending Mississippi abortion case, POLITICO has learned, and none of the conservative justices who initially sided with Alito have to date switched their votes. No dissenting draft opinions have circulated from any justice, including the three liberals.
That could explain why no second draft of Alito’s majority opinion has been distributed, as typically the two sides react to one another’s written arguments and recast their own.
Bear in mind that the Alito apparently circulated that draft in early February. The normal process supposedly would have had the court destroy copies of that draft after several days of internal circulation as a security measure. The fact that someone held onto a physical copy shows that they were concerned enough about it to set it aside just in case, but its leak also strongly suggested that it was still the primary draft position on Dobbs.
If Politico’s source is still reliable, then that assumption has been confirmed. That also lines up with other leaks from the SCOTUS sieve that the five-justice majority remains intact for now. Presumably, a split would have rendered the Alito draft moot, and another draft representing the new majority would have started circulating in the court — and leaking immediately now, as we have seen.
What seems more curious is that Alito’s draft remains the only one in play three months after it started circulating. If Politico’s source is accurate, that means that the three dissenters — four, if you include John Roberts — have yet to formulate a coherent rebuttal, of any kind, to Alito’s devastating argument against Roe and Casey. Alito’s multifaceted takedown of the constitutionally incoherent arguments in Roe will be difficult to rebut, certainly, but wouldn’t Roe’s defenders be able to produce some sort of argument by now? The court term only has another six or seven weeks to run, so the clock is ticking, and their apparent silence is deafening.
It might be that there is no constitutional argument to salvage Roe or Casey, only political arguments. And which justice wants to take the lead on arguing that the Supreme Court should really play politics?
At least the justices are unanimous on one point, Politico reports:
“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.”
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.”
If they want to make it clear that these tactics won’t work now or in the future, then perhaps the court should take up the Ex parte Quirin option suggested by Josh Blackman. Issue the ruling in a per curiam order now, even perhaps noting the split, and then publish the opinion, dissents, and concurrences later. If these leaks are accurate, it certainly doesn’t sound as though anyone’s changing their minds … with the possible exception of Roberts.
The justices meet in conference today for the first time since the leak. Perhaps an order might come after its conclusion, so stay tuned. In case you missed my podcast with Josh, here it is again, or download it from the other platforms.