Why the Leak Matters

Some liberal pundits, including Robert Reich the economist, whose really misguided comments on inflation are causing me to respect him less and less, are using the oddly illogical argument that those outraged by the leaking of the Supreme Court opinion which, in draft form, reverses Roe v. Wade have misplaced outrage and its merely camouflage for not being properly outraged about the opinion.

We'll comment more on the opinion in the future, but this is a very badly illogical argument that people like Reich and Kasie Hunt (whom I do like) are making.

Here's why the leak matters in regard to this opinion in particular.

In spite of what people may think, there's no real basis to believe that this is the final opinion. Draft opinions famously don't end up as final opinions fairly frequently.  

Now, if that happens, the final opinion will receive no respect at all.  In a highly polarized environment in which about 1/3d of the country already believes, wrongly, that Democrats conspired to steal the last election, if this doesn't go the way it seems to be headed in the draft, the argument will be "well, there you go again, they conspired to leak the opinion to pressure the justices".

We don't need that.

Additionally, if the opinion does change, it'll forever be presumed that whomever change their view, and however it changed, was a result of the public protest.  Courts should be immune to protest.  Politicians, who depend on the voters' votes, can react to protest, but courts should not.

Indeed, courts shouldn't be persuaded by trends either, which has been part of the problem here in the first instance.  We'll get to it later, but the draft assertion that Roe was always wrong isn't wrong itself.  But that brings up other issues, better addressed elsewhere.

For those who hope that the leak will pressure somebody to change their mind, the justices have shown an inclination to go the opposite direction of where they are pushed, just like mules.  Earlier this year, there was a leak that suggested that two of the justices were on the outs about something.  In reaction, they pulled together.  This is a 5 to 4 decision, apparently, but we really don't know what the remaining four think, yet.  If somebody hasn't penned their dissent, they might not, choosing instead to issue a concurring opinion on different grounds, or a partially concurring opinion.  In other words, while we know what the presumed majority thinks, we don't know what the presumed minority thinks, and they can move in secret.

Indeed, the presumed majority might already have done so.  If one of the five is pondering changing his opinion, perhaps to align more with Chief Justice Roberts, and indeed if one may already have done so, the desire not to appear subject to public protest may push them right back.  The intent of the leaker, therefore, which is presumably to torpedo the opinion, may result in the polar opposite.

And then there are the implications to the system.  We don't know who the leaker is, but its probably not a Justice.  If it were, and of course there's the chance that it is, that person will be discovered, probably, and will be sidelined to irrelevance forever.  They won't resign, Supreme Court justices don't do that, but they'll not much matter after this. They won't be assigned opinions, they won't really be consulted much, by anyone.

Of course, it's pretty unlikely a Justice is the leaker.  Somebody in the loop is, and it's probably a clerk.  That person's clerking days are over, if discovered. They'll go on, however, to a position in some left wing cause type of law firm, but the damage they will have done will be significant.  The habit of hiring clerks and how it is done will be reassessed.  Clerks will remain, but they'll be vetted to the n'th degree.  Perhaps the lock on clerkships by the Ivy Leagues will end, which will be welcome.   Perhaps it'll become the job of established lawyers, professionals who can be relied on not to be swayed by their political views and emotions, which in states courts has been the trend for many years.

And then there's the press. This is a press coup, to be sure, but the press taking a role that's ultimately destructive, really.  A draft opinion isn't the Pentagon Papers.

And that leads to the political process.  Right now, this is being used as fodder by politicians, some of whom know better and some who do not.  Vice President Harris was heard to say yesterday:

How dare they? How dare they tell a woman what she can do and not do with her own body? How dare they? How dare they try to stop her in determining her own future?

Harris is a lawyer, and she knows this is a falsehood.  What the draft opinion would do is to send this issue back to the state legislatures, or potentially to the national legislature, so that the legislators have to vote on the issue.  That's it.  A rational response by somebody with her views would be to state "well, here's a difference between us and the GOP and this is a reason to vote for Democrats.".  That's not my view, but that would be a rational response.  Instead, it's going to result in months of more false arguments before we needed to be hearing them, inserted into a political era in which boatloads of false arguments are already in circulation.  The entire country didn't need that.