Why The Leak Matters
... Even Thought It Really Doesn't.
Of course, the leaked draft Supreme Court decision on Roe v Wade is, rightly, dominating the news this week, and it should. The decision is a bad one, unpopular, and controversial on merit. It should be “topic 1” at every family gathering, luncheon, party, or gathering of any sort, whether you agree in a woman’s right to choose or favor male supremacy.
And bringing up the leak itself should, correctly, be a secondary topic in most quarters.
But the leak itself is a news story and were this nearly any other decision the Court was pondering, would probably be the hottest story of the week.
Personally, I like solving mysteries and I do have an opinion on who leaked it (Justice Thomas, and his recent speech doesn’t move the needle much away from pointing to him for my tastes).
There are reasons to believe that the leaker could be either a Democrat or a Republican. A lot of the evidence could conceivably justify the action from either point of view.
For instance, let’s assume the motive was to stir up controversy. To be sure, that would favor the leaker being a Democrat. The thinking goes, motivate the base ahead of primaries and the midterm election, get that same 2017 mojo only this year be able to apply it at the ballot box to overwhelm the attempts by the GOP to restrict voting.
But a conservative who thought the decision went too far could also utilize the leak to raise an alarm and try to bully (to use Thomas’s interesting turn of phrase) the Court into backing away from reversing precedent.
Since we know Alito wrote the decision, it’s unlikely he leaked it to raise an alarm (there are other reasons he could have leaked it but more on those later). Similarly, Gorsuch, Kavanaugh, and Coney Barret were specifically chosen to reverse Roe v Wade. Not likely to be either of them.
Which leaves Roberts and Thomas. Now, Roberts has the additional circumstance that it would be his name eternally attached to the single stupidest Supreme Court decision since Dredd Scott. It would be even stupider than Scott since it would eliminate a codified right that was “settled law” for fifty years — reducing the freedom an American enjoys — where Scott merely refused to apply freedoms to people of color.
His questions back in open court in December suggested he might be looking for a more moderate decision.
But Thomas likewise has an additional circumstance, one that has come front and center since this draft was drawn up in February: his wife, Ginni, and her role in the attempted coup of January 6, 2021. The last thing Thomas needs right now is to be on the majority that yanked the rug out from under American families. He raises the alarm, then tries to finesse his involvement by making a case about “bullying”.
Now, Alito himself, or any of the Trump appointees, could have leaked it in order to cement Thomas’s vote. Alito’s opinion addresses concerns that every conservative justice has raised in questioning in open court, except for one justice: Chief Justice Roberts.
So if the leak was from conservatives AND was an attempt to lock in the five votes needed to overturn Roe v Wade, the vote they’d most likely be trying to lockdown would be one of the justices for whom the decision was tailored, and that would be Thomas.
Again, the leak *could* have come from the left of the court, but then there’s the issue of the outsized overreaction the entire GOP has had to the leak. Forget the mystique of the court, because that ship sailed when Merrick Garland was denied a hearing in 2016.
And if the leak had come from the left of the court — even from just a staffer — it would be a lot harder to hide the paper trail (not to mention that among the recipients of the draft was the Wall Street Journal, which is hardly on friendly terms with any of the Democrat appointees to the court).
There’s certainly the “Paul Revere” motive to a leak from a Democrat, but that motive is not limited to only the left. Hell, it could have been Alito leaking for the same reasons a toddler drags mommy to the point under the stairs where he took a crap: overweening pride. Alito’s words practically drip with gloating and boorishness and his threat to continue to pursue other cases (based on precedents he had referenced for causes like same sex marriage or the right to use birth control) certainly amounts to crowing.
The only thing we know for sure is, the decision is a bad one for all Americans, men and women, and will probably be reversed at the first opportunity.
And that, curiously, Donald Trump has been awfully quiet about it.
Republicans have raised billions of dollars over the past fifty years by promising to overturn Roe and now that it’s about to happen because they selected a overfed clown with a ferret for a wig who decided to slay the golden goose, it’s no wonder they’re staring into the abyss.
And Thomas knows this. He has supported many of Trump’s claims in the past, but now that the Jan 6 investigation is focused on his family, all bets are off.