What Is the Purpose of the SCOTUS Leak?

The leaker is likely a leftist willing to blow up the institution rather than conservatives win.

Ross Douthat has a short, simple, and persuasive analysis of the motive and effect of the SCOTUS leak. First, he examines the rationale for the leaker's conservatism:

So if you were simply following a crude strategic logic, the fact that what’s been leaked is a draft from months ago might suggest that a leaker on the conservative side hopes to freeze a wavering justice — Kavanaugh being the obvious candidate — into their initial vote, by making it seem like the very credibility of the court rests on their not being perceived to cave under external pressure.

But Douthat doesn’t seem persuaded by that, and neither do I. Next he considers the case for a liberal leaker. Among the rationales:

Second, as the court has moved rightward, the climate in the left-leaning part of the elite legal world (which is to say, most of it) has become much more self-consciously activist and anti-institutionalist than the climate among, say, Federalist Society types — meaning that if you were betting on a big act of institutional sabotage right now, you would bet on it coming from the left. (And indeed, the leaker was swiftly praised by prominent voices on liberal-legal Twitter.)

Third, you can imagine various possible rationales for a liberal leak. At the most basic level, there might be the hope that seeing the inevitable backlash unfold now, while the ruling can still change, could make a figure like Kavanaugh waver further, rather than locking in his vote.

Then, too, to the extent that liberals hope abortion could be a galvanizing issue — for organizing and fund-raising as well as votes — in a midterm election that’s otherwise shaping up disastrously for the Democrats, the leaker might see this as giving his or her side a head start, by encouraging the new Resistance to get to work a month early.

And finally, to the extent that a leak like this has some delegitimizing effect no matter what, that might be an end unto itself: If the court is going to be conservative, then let it have no mystique whatsoever.

Read it all. 

Douthat says that he expects the Left will arrive at that final conclusion anyway, and observes, insightfully, that this was always where the Court was headed when the Burger Court in 1973 took abortion out of the political realm through shaky judicial fiat.

On NPR yesterday, Nina Totenberg explained why this leak is such a huge deal:

TOTENBERG: Because it’s a huge breach of trust. The justices operate like nine tiny little law firms, and they respect each other’s confidences, and they trust not only their clerks, but other justices’ clerks as well. This is a total betrayal, sort of like a partner in a marriage cheating on the other partner, except that it’s never, ever happened like this before, at least going back over 100 years. Yes, there have been tiny leaks, like about a changed vote, for instance, but even those leaks you can count on one hand. This was an entire draft opinion, 98 pages, 118 footnotes with seeds planted all over the place to undo other precedents.

We all know that, despite its ostensible apolitical nature, the Supreme Court is unavoidably a political institution. Nonetheless, it is in the best interests of our constitutional order for the Court to try to stay as far away from politics as possible. SCOTUS nominee hearings have been a political spectacle, according to Douthat, at least since the Robert Bork hearings, which were blown up by Senators Kennedy and Biden, with nominees compelled to shade the truth or be otherwise evasive about controversial opinions to avoid being tarred and feathered by politicians. It's crucial to note that the Left was the catalyst for this, and it was sparked in large part by the issue of abortion. Sen. John F. Kennedy said on the Senate floor after learning of Bork's nomination:

Neither the Democrats nor the Republicans have clean hands. The stalling and eventual spike in the Merrick Garland nomination to the Supreme Court by Majority Leader Mitch McConnell was simply politics. The Democrats, however, set the bar with Robert Bork. Now I believe the leaker of the Alito draft was a liberal court clerk eager to destroy the institution in order to save Roe.

All of this is part of the Left's continual delegitimization of American institutions. If they don't get their way, they'll demolish the building. Last year, I spoke with a progressive journalist at one of the country's top news organizations, who confirmed that the panic that gripped elite journalism in the aftermath of Trump's election was so intense that nearly everyone in those circles concluded that adhering to traditional professional standards was pointless. This person did not agree with the decision, yet they stated that it occurred.

It's still going on.

Many people are perplexed as to why I admire Viktor Orban. It's because he knows how many of these people there are, and he recognizes that their claims to liberalism are really a front for illiberal power assertion. What happened this week with the leak is yet another proof that conservative politics in the United States must learn from Orban, or there will be no conservative politics left by the time the Left and the institutions it has seized complete control of us.

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