Alito opinion released by a pro-choice law clerk? I'm not buying it.

John Roberts is livid, as well he should be. The public release of Justice Samuel Alito’s draft opinion has caused a firestorm. Mitch McConnell is livid as well. The leaker should be investigated and punished, he insisted. Lock her up and throw away the key. 

McConnell’s utter lack of self-reflection or irony was on public display once again, as he blasted the leaker for eroding public confidence in the legitimacy of the Court. Of course, no one in the nation’s capital has done more to damage the legitimacy of the Court than McConnell himself. 

It is McConnell’s presumption that the leaker was part of the radical left cabal that he rails against incessantly. Perhaps history will show that some left-leaning Supreme Court clerk leaked the opinion, hoping that the ensuing public outcry would force the Court’s hand, pressuring the justices to bow to “activist pressure,” in McConnell’s words.

I’m not buying it. A law clerk seems the least likely candidate for the leak, as they would have the most to lose. Lawyers are supposed to take their code of ethics seriously – except, it seems, for Supreme Court nominees who apparently believe that lying to Congress is OK if that is what it takes to ensure confirmation. And a Supreme Court law clerk caught leaking Court documents would place their career in jeopardy.  

And for what? According to the Politico story about the draft opinion, Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had signed up for the Alito draft in conference. Would they be put off by the public outcry from the left? Hard to imagine. Barrett and Gorsuch are true believers; and Kavanaugh and Thomas would be more likely to double down in the face of protests after their perceived treatment by Democrats during their confirmation hearings.

No. The Alito draft was at least two months old. Why leak it now, when the time is so short until the end of June when the opinion would be released? Who would benefit?

It seems more likely that someone leaked the Alito draft opinion now because John Roberts never signed on. Roberts feels betrayed, perhaps because he actually was betrayed. In the ensuing months since Alito circulated his draft, Roberts may well have been steadily working on his colleagues to understand the importance of moderating the language of the forthcoming opinion. Narrowing the scope of controversial opinions has been his modus operandi for years now, as Roberts has sought to maintain the legitimacy of the Court even as it has migrated sharply to the right.

The reason why Alito’s opinion had to be released was immediately evident during the 24 hours since the draft opinion hit the press. Anti-abortion activists have been beside themselves with glee. Forget returning authority over abortion law to the states, activists have immediately pivoted to passing a national anti-abortion law. If Roe v. Wade set the course of the last half-century, broadening privacy rights across a range of social issues, Alito’s sweeping opinion was going to set the course for the next half century, undoing so much of the damage they firmly believe that Roe had done. Half measures would not do.

The leak was not about stopping the Alito opinion from becoming the law of the land; it was to ensure that it does become the law of the land. The target was Roberts, and his continuing – albeit steadily failing – determination to have the Roberts Court survive with a modicum of public confidence and judicial legitimacy.

If John Roberts was on the verge of achieving a 6-3 majority for his more moderate, partial repeal of Roe, an anti-abortion activist's objective in leaking the document would be to remind the anti-abortion community how much was at stake. Their objective would be to shame the justices who were migrating toward Roberts, and bring them back into line.

​​The simple fact is that the headline in the New York Times, “Draft Ruling on Abortion Signals Seismic Political Shift,” had it wrong. There has been no seismic shift in the politics of abortion, The polling is largely unchanged. At least two-thirds of Americans are broadly pro-choice, while one-quarter to one-third are generally opposed to legalized abortion under most circumstances. A far smaller percentage are opposed to abortion under any circumstance. Far from a political shift, the draft ruling is simply one more illustration of the imbalance of power in the country that derives from the Apportionment Clause of the Constitution – which gives two senators to the 600,000 residents of Wyoming and another two to the 40 million residents of California. That distortion, in turn, has resulted in a Supreme Court that is broadly unrepresentative of the nation itself.

If someone were to consider the type of activist on the right who might have the access and opportunity to instigate a leak of the Alito draft opinion, that person would not have to think hard before they considered Virginia Thomas, the wife of Clarence Thomas. Ginni Thomas, who has been in the news recently for her string of text messages advocating for overturning the 2020 election, has been a long-time force in her own right within right-wing politics. As Jane Mayer wrote earlier this year in the New Yorker, Ginni Thomas has aligned herself with a number of right-wing activists with issues in front of the Court, and, as Mayer writes, “has declared that America is in existential danger because of the ‘deep state’ and the ‘fascist left,’ which includes ‘transsexual fascists.’” 

While this suggestion is purely speculative, Ginni Thomas has been in a unique position to understand the deliberations within the Court over the repeal of Roe. More importantly, as an activist who has waited years for this moment of Court power to arrive, she understands that there is going to be only one Supreme Court repeal of Roe v. Wade. This would be the only shot.

The Alito opinion was written a couple of months ago. The notion that a pro-choice law clerk leaked it seems to lack imagination. For decades, anti-abortion activists have been dreaming of a moment such as this. If they get the slightest inkling they are being betrayed by John Roberts, leaking the opinion could be the only way to get the justices – whom they worked so hard to put on the Court – back in line. If the person who leaked the document could also orchestrate things so that the blame falls on those on the left whom they so revile, so much the better. 

Follow David Paul on Twitter @dpaul. He is working on a book, with a working title of "FedExit! To Save Our Democracy, It’s Time to Let Alabama Be Alabama and Set California Free."

Artwork by Joe Dworetzky.  Follow him on Twitter @joedworetzky or Instagram at @joefaces.