Friday, May 06, 2022


Josh Marshall has persuasively argued that the leak of Samuel Alito's draft decision in Dobbs v. Jackson Women's Health Organization must have come from someone on the right. Yesterday he cited a pair of posts written for Reason magazine's Volokh Conspiracy blog by Josh Blackman, an opponent of Roe v. Wade. Blackman points out that leaks from the Supreme Court aren't unheard of, although in the recent past they've been leaks about deliberations and not leaks of documents. Prior to the Alito leak, when a Wall Street Journal editorial speculated that Chief Justice John Roberts might be trying to persuade another conservative justice to take a less extreme position in Dobbs, Blackman wrote:
... while reading the piece, I had flashbacks to NFIB v. Sebelius and Bostock. In both cases, rumors began to swirl that a conservative Justice was going to vote with the left. And, in both cases, there was a sustained public relations campaign on the right to shore up the wavering Justice. And, in neither case did those efforts work.
So rumors about deliberations do leak. They're leaked by right-wingers who want hard-right positions to prevail. That's reason enough to believe that the Journal editorial page got a similar leak that was also motivated by right-wing zealotry.

But why a subsequent leak of an entire draft decision? The conventional thinking, if you believe that the leak came from the right, is that this was also part of a campaign to keep right-wing justices from compromising.

But what if it wasn't? What if the draft was leaked because the compromise had already happened?

In this scenario, right-wingers leak the draft and then blame the leak on liberals. They claim that the leak was the reason Alito's sweeping decision was scrapped in favor of a RINO compromise. They blame the more "moderate" decison on the leak when the compromise had already happened before the leak.

If this is what happened, it means they know the decision will disappoint the base, so they're blaming left-wing leakers for that, rather than John Roberts and another Republican justice. If this theory is correct, the current wave of blame-shifting is the first of two. Our side will really be accused of intimidation when the ruling comes out ... just a few months before the midterms.

Oh, and of course this only works if the real leaker is never found. But when are right-wingers ever held accountable in America?

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