Supreme-Court Sources Can’t Stop Leaking About the Abortion Case

An abortion-rights activist hangs signs on a temporary fence around the U.S. Supreme Court building on May 5, 2022. Photo: Anna Moneymaker/Getty Images

In its statement last week announcing that Chief Justice John Roberts had ordered an investigation into the leak of a draft opinion indicating that Roe v. Wade is about to be overturned, the Supreme Court said that while the majority opinion by Justice Samuel Alito is authentic, “it does not represent a decision by the Court or the final position of any member on the issues in the case.”

But subsequent reports suggest nothing has actually changed on the Court since the draft was circulated in February. “As of last week, the majority of five justices to strike Roe remains intact,” according to a Washington Post story published Sunday. Politico confirmed on Tuesday that this is still the case and revealed that the leaked opinion “remains the court’s only circulated draft” in Dobbs v. Jackson Women’s Health Organization.

“No dissenting draft opinions have circulated from any justice, including the three liberals,” Politico reports. “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.”

Roberts reportedly told fellow justices that he wanted to uphold Dobbs while leaving Roe partially intact (though that seems impossible), but the other conservatives wanted to strike it down now. If there is still disagreement among the conservatives, the Court’s liberals have little reason to offer up their responses and hasten the end of abortion rights before the end of the term.

We know these details because multiple people close to the Court keep leaking information to the press, though Roberts claimed in his statement on this “betrayal” that Court employees are “intensely loyal to the institution.” And while right-wing officials and pundits have expressed deep outrage over the leak, insisting that it must have come from a liberal and trying to make the story about the harm inflicted on the Court’s integrity rather the damage that will be caused by the loss of abortion rights, we know at least some of these newer leaks are coming from conservatives.

The Post report cites “three conservatives close to the Court” as well as “a person close to the most conservative members of the Court.” The Politico report contains an incredible quote in which a “person close to the Court’s conservatives” leaks that the justices are deeply troubled by the impact all this leaking might have on the Court:

“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.”

Another source tells Politico that the liberal justices are upset too:

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.”

But that person’s political affiliation is not clear, and there are no quotes attributed to sources close to the liberals specifically. Meanwhile, an “attorney close to several conservative justices” suggests to Politico that the right is getting revenge on Roberts for siding with the left on several big cases in recent years:

“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.

The justices are set to meet privately on Thursday for the first time since the draft leaked. So stay tuned for more anonymous updates on all the nasty things Alito, Amy Coney Barrett, Brett Kavanaugh, and Clarence Thomas say to Roberts behind closed doors, and how everyone close to the Court is deeply troubled that these leaks might diminish the public’s respect for the institution.