What Was the Purpose of the Leak?

            A breaking news story declares that the leak of the draft opinion on abortion ended Chief Justice John Roberts’ attempt to preserve Roe v. Wade. I assume that the leaker was surprised at this news, but I wonder if the news made them frustrated or satisfied.

Joan Biskupic of CNN referenced “multiple sources familiar with negotiations” when he reported that Roberts spent months lobbying conservative justices to save the constitutional right to abortion. Roberts’ lobbying efforts continued until the end of the session. However, “Roberts’ best prospect” Justice Brett Kavanaugh was not “ever close to switching his earlier vote.” 

New details obtained by CNN provide insight into the high-stakes internal abortion-rights drama that intensified in late April when justices first learned the draft opinion would soon be published. Serious conflicts over the fate of the 1973 Roe were then accompanied by tensions over an investigation into the source of the leak that included obtaining cell phone data from law clerks and some permanent court employees.

In the past, Roberts himself has switched his vote, or persuaded others to do so, toward middle-ground, institutionalist outcomes, such as saving the Affordable Care Act. It’s a pattern that has generated suspicion among some right-wing justices and conservatives outside the court.

Multiple sources told CNN that Roberts’ overtures this spring, particularly to Kavanaugh, raised fears among conservatives and hope among liberals that the chief could change the outcome in the most closely watched case in decades. Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decisions, lest anything suddenly threaten their majority.

Roberts’ persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play. He can usually work in private, seeking and offering concessions, without anyone beyond the court knowing how he or other individual justices have voted or what they may be writing.

Kavanaugh had indicated during December oral arguments that he wanted to overturn Roe and CNN learned that he voted that way in a private justices’ conference session soon afterward…

            Chris Enloe at The Blaze stated that “the shocking leak” of the draft majority opinion brought Roberts’ campaign to an abrupt end. Soon after Politico published the draft opinion, Roberts condemned it and promised an investigation. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed…. The work of the Court will not be affected in any way.” 

            Enloe continued by saying that “Roberts discussed his concerns about overturning Roe, targeting Brett Kavanaugh and Amy Coney Barrett. Roberts’ campaign began after the initial vote and continued for several months but ended with the leak. “Roberts reportedly wanted to uphold Mississippi’s 15-week ban on abortion, but at the same time preserve the framework of Roe.”

            Supreme Court Marshall Gail Curley was appointed to head the investigation into the leak but “has not found the source of the leak nearly three months later.” The search is continuing, but there are skeptics. However, the questions remain: Who was the leaker? What was their purpose?