[COPY] Who Leaked Alito's Draft Dobbs Abortion Opinion?
Not a Clerk but someone with authority and access and motive
January 19, 2023 Updated Version of July, 2022 Newsletter
I published the following Harold’s Newsletter in July, 2022, where I , like Chief Justice Roberts, did not interview any of the siting Justices of the Supreme Court, but unlike the Chief Justice, I did analyze the available facts, sort of like an amateur Sherlock Holmes, and I developed a theory set forth here as to who was the leaker of the Alito draft opinion, and why and who was involved. Most readers of my Newsletter at the time thought I made a very persuasive case suggesting the identity of the Alito Draft Opinion leaker.
So with Chief Justice Roberts releasin his report coming to the conclusion that he doesn’t know who was the leaker, I thought I would republish my speculation for further creative analysis by other Sherlock Holmes imitators.
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A couple months back we were delighted to see a leak coming from all places the Supreme Court of the United States. They say leaking is the most popular activity of those having or near sources of power and authority in Washington. But coming from the Supreme Court, this was something new and intriguing. So, who leaked the opinion and why?
The Court officials speculated it came from a lower level clerk who had some motive to leak. Was it a liberal or a conservative, and what was the purpose of the leak? Apparently, Chief Justice Roberts took it upon himself to order an investigation be conducted. If there was an investigation, we have heard nothing of the outcome and conclusions. But why?
I don’t think the leak came from any court clerk. Why would a clerk jeopardize their job to leak a draft opinion? Did a clerk hold strong views on abortion and either want to embarrass the Court and/or Justice Alito? Did the leak come from one of the superstar law clerks to one of the Justices? But why would a young attorney, having the good fortune to obtain a Supreme Court clerkship, jeopardize their job and worse their entire legal career by leaking a draft opinion? Very doubtful that one of the superstar and very talented law clerks leaked the opinion. They are too smart to be a leaker.
I believe that the Chief Justice knows who the leaker is, but he is not telling. Why? I think I know the answer to this detective story. The leaker had to be someone in high authority in the Court but whose job would not be jeopardized by leaking a draft opinion on a highly watched case. But, again why leak and who was the leaker?
I believe from news reports, prior statements about Roe and Casey and with a touch or more than a little touch of hostility to rules of institutions, the leaker had to be one of the Justices. They all have lifetime appointments and can only be removed by impeachment, and we know from the two Trump impeachments and the need to get votes of two-thirds of Senators to impeach, that impeachment at high levels is not a workable democratic remedy. So, a Justice is well insulated even if they decide to leak a draft opinion. Also, since the Court does not have any disciplinary rules or ethics rules, leaking is fair game for a Justice with a motive and commitment.
So based on all these considerations, I believe, though I do not have proof sufficient in the eyes of Attorney General Garland to justify prosecution, the leaker is:
Justice Clarence Thomas
Justice Thomas has been a long-time opponent of Roe and Casey. He has written a dissent in Casey, He has given speeches opposing Roe and Casey. Of course, this hostility to Roe and Casey comes after Justice Thomas incredibly testified under oath in his confirmation hearing in 1989, that he never thought about abortion and its legal consequences at any time in law school and before his nomination as an Associate Justice. His sworn testimony then and now seems incredible and unbelievable.
I further surmise that since Justice Thomas has a wife Ginni who is actively involved together with Mark Meadows and former President Trump in subverting our democracy and Constitutional processes, she makes a great courier to take a draft opinion and leak it to interested news media.
But what was Justice Thomas’ motive in leaking the draft Alito opinion? The Justices had voted after oral argument having discussed the Dobbs case. There was a group of five Justices deciding to overturn Roe and Casey; it included Justices Alito, Gorsuch, Thomas, Kavanaugh and Barrett, she having certain radical Catholic group memberships. I call them the Alito Five or more appropriately the Gang of Five. But there were rumors circulating in the Court that one of the Gang of Five was thinking about resigning from the Alito Group and joining the Chief Justice in preserving Roe and Casey but approving the Mississippi fifteen week abortion limit. The rumor was that Kavanaugh was thinking about joining with Roberts and leaving the Gang of Five.
So, Justice Thomas who worked to overturn Roe and Casey, did not want to lose this chance, after 24 years on the High Court bench. So, Thomas thought he could prevent Kavanaugh from deserting the Gang of Five by leaking the draft Alito opinion. Whatever you think of Thomas’ rationale and strategy, his gambit worked as Kavanaugh stayed loyal to the Alito Five when the Dobbs decision was released in final form on June 24 overturning Roe and Casey.
Justice Thomas for these reasons gave the draft Alito opinion to his wife Ginni, and she, according to Thomas’ plan, gave it to Politico, and she believes herself to be a high ranking politico, so Politico was a place that would know what to do with a draft Supreme Court opinion: publish it and get a major scoop, which they did, probably increasing their readership.
So that is my circumstantial case why Justice Thomas was the leaker. The Chief Justice must also know it was Thomas, but he does not want to further embarrass the Court by announcing the result of the leaker investigation: it was one of their own, Justice Clarence Thomas.
Perhaps this event will inspire the Court to adopt Ethics Rules like the ones governing all district and appellate federal judges. If the Justices don’t adopt Ethics Rules for themselves, the Congress should do it for them by legislating formal ethics rules binding on all Supreme Court Justices.
There still is the question whether leaking a draft Supreme Court opinion violates any federal criminal law. Some have suggested it does, but that takes some in depth research to see if there is any applicable criminal statute in the federal criminal code that applies. Maybe while Attorney General Garland is very slow walking the indictment of Trump and his co-conspirators, he could assign a DOJ attorney to research this important question, perhaps yet another Special Counsel.
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