It is not often that I forward an article of this length, but this is worth the exception. It is written by David Lat, founder of Above The Law and current owner of his independent project, Original Jurisdiction, where the article was published. It theorizes about the recent USSCT leak of a draft opinion, which has the potential to overturn Roe v. Wade, and it also addresses the potential harm in taking away a right that women in America have depended on for the last 50 years.
But it is not all about women. It is also about the men who love them and support them and depend on their contributions to households, which include the needs of other children and complicated economic formulas leveraged on the financial contributions of two working parents.
REMEMBER as you read below, that Lat’s fictitious OP ED at the end is just that — FICTION. But it offers a lot of food for thought on the leak itself and the risks for millions of Americans of the analysis in the draft opinion becoming the opinion of the Court.
Save it for the weekend! It will take some time. Here it is — from David Lat:
Like every legal commentator in America, I have theories about the identity of the individual who leaked the initial draft majority opinion in Dobbs v. Jackson Women’s Health Organization, the landmark abortion case now pending before the U.S. Supreme Court. My usual caveat applies: this is merely speculation, based on publicly known information, and you should take it with a veritable shaker of salt.
For starters, I’m fairly sure the leaker is a law clerk.¹ I don’t believe the leak came from a justice. As I wrote last week, all nine justices have too much respect for the Court as an institution—and too strong an interest in maintaining the confidentiality of its deliberations—to engage in such a massive leak.
I also doubt the leak came from a non-clerk staffer, such as an administrative assistant or chambers aide, or someone who doesn’t work at the Court but had access to the opinion, such as the spouse or roommate of a clerk. Recall that in addition to the opinion itself, Politico has received substantive leaks about the deliberative process in Dobbs. When they posted the draft opinion, Josh Gerstein and Alexander Ward also wrote this:
A person familiar with the court’s deliberations said that four of the other Republican-appointed justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—had voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.
“A person familiar with the court’s deliberations” who also knew that the line-up of justices in Dobbs “remains unchanged” is unlikely to be someone serving in a strictly administrative capacity at the Court.²
Then yesterday, in an article by three reporters—Gerstein, Ward, and Ryan Lizza, Politico’s chief Washington correspondent—Politico shared more inside information:
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.
Again, I doubt a non-clerk staffer or household member of a justice or clerk would have access to all this real-time information, even if they somehow got their hands on Justice Alito’s draft opinion from February.
Politico is a respected publication, Gerstein and Ward are respected reporters, and they would not put their reputations on the line by publishing a draft opinion whose authenticity they couldn’t verify with a high degree of certainty. As Politico’s two top editors, Matthew Kaminski and Dafna Linzer, told their newsroom shortly after publishing the draft, they confirmed its authenticity through “an extensive review process”—which surely included someone involved in a substantive way with Dobbs.
An argument you often hear in response to suggestions that the leaker is a clerk is that clerks have too much to lose from leaking. As someone who closely covers the world of Supreme Court clerks, I’m well aware of the benefits of a SCOTUS clerkship, which include everything from $400,000+ signing bonuses from law firms to dramatically enhanced career opportunities.
This factor leads me to my second point: in addition to being a clerk, the leaker comes from the left side of the Court. Why? For starters, because someone on the left is less likely to suffer adverse career consequences for leaking than someone on the right.
As has been widely noted, the right mainly raged about the leak, while the left mainly raged about the likely overruling of Roe v. Wade and Planned Parenthood v. Casey. Some on the left even celebrated the leaker—such as Brian Fallon, executive director of Demand Justice, one of the left’s leading organizations when it comes to the courts:
Or Ian Millhiser, senior correspondent at Vox:
Or Daniel Ellsberg of Pentagon Papers fame, who told NPR, “It’s a very good thing that [the draft] got out. It was important to be out.”
So here’s my bold prediction: the leaker will eventually come forward, take responsibility for their actions, and even defend them—maybe in a high-profile venue, like a guest essay for the New York Times.
Inspired by Ninth Circuit Judge Lawrence VanDyke’s mock en-banc opinion reversing his own panel opinion, I have written a mock Times op-ed from the perspective of the Dobbs leaker. Please note—especially those of you who tend to skim or read too quickly—the following disclaimers and disclosures:
- I am NOT the Dobbs leaker.
- This is NOT a real essay by the leaker.
- I have NOT been in touch with the leaker (to my knowledge).
- I do NOT know who the leaker actually is.
What follows is merely what I imagine such a person might write, based on arguments already circulating in public discourse. It’s a generally serious effort to inhabit the mindset of the SCOTUS leaker, albeit with a few over-the-top or exaggerated flourishes, and it’s basically my explanation for why someone from the left would have wanted to leak the Dobbs opinion.
To repeat, this is a fictitious essay, and it does not represent my own views about the underlying issues in Dobbs. If it makes you angry, you’re probably not angry at me; instead, it probably means that I have written successfully from a perspective very different from my own—a healthy intellectual exercise that we should all try on occasion. I look forward to your thoughts.
I’m the SCOTUS Leaker—And No, I’m Not Sorry
I am the Supreme Court law clerk who leaked Justice Alito’s initial draft majority opinion in Dobbs v. Jackson Women’s Health Organization. In Dobbs, which the Court will likely hand down next month, five unelected justices will strip tens of millions of pregnant or potentially pregnant people of the right to safe, legal reproductive healthcare. People throughout this country have enjoyed this right, despite (often successful) efforts of Republicans to take it away or frustrate its exercise, for almost fifty years.
Before explaining why I did what I did, I’d like to make one thing perfectly clear: I bear sole responsibility for my actions. The fault does not lie with Josh Gerstein and Alexander Ward, the Politico reporters to whom I leaked the draft. I went to them of my own free will, and they did not pressure me, pay me, or do anything else to induce me to leak the opinion. As for why I went to them rather than other reporters, I had a preexisting relationship with one of them, and I liked Politico as an outlet because it’s established enough to be credible but not strongly associated with either the right or the left. I did not want the outlet to distract from the story, and Politico was the perfect tabula rasa.
Nor does the fault lie with my boss. I did not tell my justice about my conduct in advance—in fact, the justice is learning about my actions the same way all of you are, by reading this op-ed—and the justice neither encouraged nor endorsed my actions. To the contrary, I believe the justice will now condemn my conduct. But with all due respect to the justice—whom I admire greatly, and whose friendship and mentorship I will be sad to lose—I know what I did was right.
To the extent that my revelation creates difficulties for my justice, with some blaming the justice for hiring me, I apologize. But I believe it is morally wrong to focus on the reputation of a justice or the Court when millions of people are about to stripped of an essential right. In fact, it is not only wrong—it is obscene.
So why did I leak the Dobbs draft? Here are my reasons.
First, I did it to warn both elected officials and pregnant and potentially pregnant people about what the Court is about to do. It’s about to take away a cherished right to critical healthcare that has been protected by the Constitution for half a century. After Dobbs officially comes down, some 36 million people in 26 states will lose access to abortion care practically overnight, thanks to a toxic combination of pre-Roe abortion bans and newly passed “trigger laws.”
But because I have sounded the alarm, legislators and executives are focusing now—not in June, but right now—on protecting abortion rights. At the state level, legislatures and governors in blue states are reinforcing reproductive healthcare rights, not just for their own residents but for people fleeing abortion bans in their home states. At the federal level, Democrats are pushing legislation to protect access to abortion care—and even if those efforts are unlikely to go anywhere because of Republican intransigence (and the loathsome Sen. Joe Manchin), they reflect an increased and earlier focus on this critical issue. Leaders are taking action today—because of what I did.
And it’s not just government officials. My leaking of the Dobbs draft has served as a warning to pregnant and potentially pregnant people that a crucial right they rely upon could vanish in a few weeks in their states. This is allowing them to plan ahead—by moving to better states, saving up for out-of-state travel to get an abortion if they can’t move, or switching to other forms of contraception. This early action, by both elected officials and individuals, will help thousands if not millions of people better cope with the disaster to come.
Second, with the midterm elections just a few months away, I took action to remind the American people of what’s at stake—and to spur them to political action and activism. Elections have consequences—and with Roe and Casey about to get overruled, we are now witnessing the catastrophic consequences of electing Donald Trump, who made three illegitimate appointments to the Court. By giving people advance notice of the tragedy about to transpire, I hoped to inspire them to action.
If you’re horrified by the prospect of almost 40 million people losing access to reproductive healthcare in less than two months, don’t (just) complain on Twitter—do something. Donate to candidates who will protect a pregnant person’s right to control their own body. Register voters who will support these candidates. Get involved with a political campaign. It’s not too late—which is why I acted when I did. As noted by Politico, my disclosure of the Dobbs draft “instantly jolted Democrats from a bout of political malaise Monday night—and many hope it could change the tide of the midterm elections.”
Third, I wanted to expose the Supreme Court as the intellectually and morally bankrupt institution that it is—and seeing the initial Alito draft, shockingly retrograde and shoddily crafted, does more than I ever could toward this end. To my critics who have complained that my leak undermined and delegitimized the Court, I say to you: that’s a feature, not a bug.
The initial draft opinion in a controversial case like Dobbs is usually more ideologically extreme and weaker in its analysis than the final product. An opinion gets both more moderate and analytically stronger as other justices make suggestions to the author—sometimes “suggestions” that the author must adopt to secure their colleague’s vote.
The Alito draft is an excellent example. It’s ideologically extreme—aimed not at persuading, but at “owning the libs”—and it’s a train wreck of an opinion (for reasons I can’t comprehensively list here, but see generally Twitter). I want the nation to see this draft, not the final opinion—which, while surely still terrible, won’t be as bad. Look at Alito’s work, my fellow citizens (and undocumented immigrants), and despair.
Then get angry—really angry. Angry enough to donate to your local Democratic political candidate. Angry enough to volunteer for your local pro-choice organization. Angry enough to protest outside a justice’s house. To those of you who object to protesting at judicial residences, I’ll quote the most popular comment on the Washington Post’s handwringing editorial: “We’ll stay away from their houses when they stay away from our uteruses.”
Fourth… why not? Ever since the Dobbs argument in December, which made clear that the justices were leaning in favor of overruling Roe, followed by the justices’ conference, which confirmed this to those of us at the Court, I’ve been in a state of despair. Part of my decision to leak the Dobbs draft was, to be honest, a scream into the void. I realized my act could have unpredictable consequences—but before the leak, what was predictable was soul-crushing. I didn’t know if the leak will make anything better—but it can’t make things any worse.
All this should make abundantly clear that the leak was not about me—it was about the good of this nation. But I’ll close with some thoughts about my own fate.
First, I did consider whether I might be criminally prosecuted. While an aggressive and unjust prosecutor could come up with theories for prosecuting me, I concluded after careful legal analysis—which I’m pretty good at, as a SCOTUS clerk—that a successful prosecution would be very unlikely. More importantly, the risk of such a prosecution was more than outweighed by all the good I could do.
Second, allow me to address the commentators who have so kindly worried on my behalf about how I just torpedoed my once-promising legal career. I find such thinking offensive. I’m insulted by the suggestion that I’m focused on career ambitions at a time when millions of people, including some of the most marginalized people in society, are about to lose access to vital healthcare. A crisis looms for 40 million people—and you think I’m fretting over losing a $400,000+ signing bonus?
Please—did you seriously think I would ever work for Biglaw? Understand this: today’s progressive young lawyers are different from our forebears (many of whom were more liberal than progressive). Our predecessors viewed working for Biglaw for a limited period of time as acceptable; we do not. We reject the mealy-mouthed view that, to paraphrase Trump, there are “very fine people” who work in Biglaw, vote Republican, or belong to the Federalist Society.
No decent progressive—or human being—can work, for a summer or for a minute, for law firms that defend fossil-fuel companies and opioid manufacturers. The fact that these firms give people off on Juneteenth does not excuse their fundamental evilness—just as being nice to their dogs doesn’t make Republicans less evil, or giving out free SunChips doesn’t make FedSoc members less evil. If you are working on the side of injustice—or remaining silent in the face of injustice, which is not a neutral stance—I really don’t care how much pro-bono work you do, how you brake for small animals, or how “nice” you are to store clerks. You are evil, full stop.
Third, while I have no fear of being banned from Biglaw, I would be more upset if I get disbarred. But if that’s the price I must pay for doing all the good I’ve described, I’ll pay it. When you work at the Supreme Court, it’s easy to think that the legal world is the center of the universe. But there are other ways to bring about major social change besides practicing law—and many of them are more effective and faster-acting than the law, which is precedent-based, plodding, and painfully incrementalist.
I managed to become a SCOTUS clerk because I’m smart, hardworking, and committed. I will always have options. If exiled from the practice of law, I’ll go into activism or advocacy. I’ll become a political operative or a community organizer. I’ll run for office. I’ll become a pundit or public intellectual. I’ll get a faculty position at my alma mater, Yale Law School.
It’s true I’ll never be a judge or justice, one of my career goals back when I was a naive law student. But as a clerk, I’ve seen the judiciary from the inside and at the highest levels, and the scales have fallen from my eyes.
The rot goes far deeper than Republican justices voting for Republican outcomes (yes, Justice Alito, I’m looking at you). Rather, in the United States in the year 2022, the basic enterprise of judging—of interpreting and enforcing laws that are the product of a fundamentally unjust power structure, one that reifies and reinforces inequality of every sort, at every turn—is inherently corrupt. There is no “good” way to be a judge in a “justice” system that does what it does to BIPOCs, womxn, and LGBTQQIAAP people. I no longer want to become a judge because, to paraphrase Justice Harry Blackmun, I no longer want to tinker with the machinery of injustice.
So no, I’m not worried about myself and my career; I’ll be fine. I’m worried about the tens of millions of people who are about to lose fundamental rights, thanks to a Supreme Court with at least four members who shouldn’t even be there.
Last month, I attended my last Supreme Court oral argument as a clerk—and maybe my last one ever, since I will be persona non grata at 1 First Street upon publication of this essay (which I hereby ask my justice to treat as my resignation letter). When the marshal ended the opening cry by saying “God save the United States and this Honorable Court,” I winced.
“This Honorable Court” is a dishonorable court. And nothing would make me happier than to watch it burn, baby, burn.1
I refer to “the leaker,” singular, because I think Politico has just one source. I acknowledge the possibility that Politico is getting leaks from multiple sources—e.g., it got the draft opinion from one source, and information about deliberations from a second source—but I find it unlikely.
One reason the leak was so shocking is that leaks, and certainly leaks of this magnitude, have rarely happened at the Court in the past. As anyone who has followed the Court for years can tell you, SCOTUS leakers are rare—and even more rare are leakers who share full draft opinions. So I adhere to the single-leaker theory, at least for Politico. (As I noted over the weekend, the Wall Street Journal’s conservative editorial page is also getting leaks, although much smaller in nature, and I think the WSJ’s leaker comes from the right.)2
I also agree with Dan McLaughlin and Sarah Isgur that, in general, long-tenured secretaries and chambers aides have stronger loyalties to the Court and to their justices than transient law clerks. These career civil servants also tend to have more moderate political views than clerks—and as discussed below, I believe the leaker had strong political motivations.