Ever since a draft Supreme Court opinion in the case of Dobbs v. Jackson Women’s Health Organization was leaked to Politico, outrage from figures on the political right has been palpable, with Sen. Ted Cruz (R-TX) all but foaming at the mouth as he insisted that if the leaker can be found, he or she needs to be punished to the maximum extent of the law.
But what if the actual leaker was a conservative, perhaps even a conservative Supreme Court justice?
Jonathan Chait of New York magazine was a guest on MSNBC to discuss a column he wrote in which he laid out the case that someone on the right is the most likely suspect:
“I want to be clear that I have no idea who leaked this and it definitely could have come from the left. but I wrote this because so much of the commentary from the right simply assumed that the leaks that come from the left and ignored the fact that we have a smaller leak three days before from the Wall Street Journal that had the same effect they’re decrying, which is to put public pressure on the justices to rule in a certain way. That is the reason why they say this leak is so dangerous, because it subjects the justices to this kind of lobbying and that is exactly why the Wall Street Journal was leaked this early version, and they really had the inside scoop on the breakdown inside of the court.”
The editorial Chait referenced from the Wall Street Journal included this paragraph:
“If [Roberts] pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.”
And that’s exactly what happened, as Chait noted in his article:
This turned out to be a good guess!
The editorial proceeded to craft an argument for why Kavanaugh and Barrett should stick with Alito rather than defecting to Roberts. Leaking internal deliberations in order to lobby the justices seems to be fine when conservatives are doing it.
Chait ends his article with this analogy:
If a bank employee stole a small amount of money from the safe and then, a few days later, there was a huge robbery from the same safe, who would be your first suspect?
As supporting evidence, Chait included these tweets from conservative Randy Barnett:
Two hours later, Barnett tweeted:
It’ll be interesting to see what Ted Cruz and other conservatives have to say if Chait’s theory of a right-wing leak is proven to be true.
