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Does the Chief Justice have a choice? For that matter, does the FBI?
Answer: of course not. That leads to another question, however, which is: will they catch the leaker? And another: Does it matter?
I’d guess the answer to all that is a big, yawning no, but one cannot just let this unprecedented violation go without some sort of attempt to identify the culprit. CBS’ Jan Crawford reported last night and again this morning that her sources expect Roberts to order an investigation immediately, and likely bring in the FBI to conduct it.
That oughta make things cozy on the big bench, eh?
Chief Justice Roberts is likely to order a full investigation involving the FBI into the reported leak of a draft majority opinion, reports @JanCBS — as some question if it will throw the Supreme Court’s legitimacy into question. pic.twitter.com/rJsIlQqjEU
— CBS Mornings (@CBSMornings) May 3, 2022
It’s not impossible to catch leakers, but it’s not easy either … if they keep their mouths shut. Politico’s Josh Gerstein isn’t going to cough up his source, of course. If that source decides to go back into the woodwork, it will be tough to root him or her out.
Plus, the situation has grown more complicated. It’s not just the one leak that Roberts needs to plug, but several. Crawford’s sources seem to feel relatively well informed at the Supreme Court too. Plus, let’s not forget the CNN sources that spoke about his own deliberations on this case. That may not be quite as egregious as leaking a draft opinion in toto, but it ain’t far off either. Roberts certainly will be motivated to get the identity of those leakers.
Assuming it’s not Roberts himself, of course. I kid, I kid … I think, I think.
Get ready for this year’s blockbuster whodunit, regardless. Slate puts on its Ellery Queen hat this morning:
So who leaked the draft Dobbs opinion, and why? From our completely speculative position, there seem to be four logical scenarios that emerged on Monday night.
The Occam’s razor answer—and the one spreading quickly in conservative media after the leak—is that an angry clerk of one of the progressive justices leaked the opinion to prepare the public for the end of Roe hoping to potentially galvanize opposition against the decision and to take one last desperate attempt to change one of the five votes to overturn Roe. …
However, it would make perfect sense for a conservative justice to leak this opinion, either themselves or through a clerk, if for some reason they thought one of the five votes was still on the fence to pressure that fence-sitter to stay on the team. Even if that vote was not on the fence, a conservative justice leak would make sense in that it might pre-empt any sort of last-minute squishiness, as Roberts apparently experienced in the Obamacare decision. …
A progressive justice might have leaked this knowing it was unlikely for them to be caught—as in Scenario Two—and in order to try to put one last final push of pressure on any potentially wavering justices, as in Scenario One. Again, it does not seem like this would work, but if anyone would be privy to the possibility that another justice might be swayed to change his or her mind about ending Roe by a massive public backlash to this draft opinion, it would be another one of the justices. Perhaps a progressive justice noticed that one of the five in favor of ending Roe was soft and decided this was the last best chance to sway them.
Usually, the simplest answer is the correct one, so I’d bet on the first scenario. However, I’d also caution against any attempts to Ellery Queen this from afar and name suspects based on sheer speculation, too. That’s a great way to ruin someone’s life unnecessarily and subject one’s self to legal liabilities as well. The FBI will be best positioned to handle this … assuming Roberts wants them to do so. Stay tuned.