Tuesday Talk*: Leaker, Hero or Villain?

Some prawfs noted that there was a leaked decision in 1919 by a Supreme Court clerk given to some Wall Street speculators so they could use the advance information to make a killing in the market. But the idea of someone within the Supreme Court leaking a draft decision is shocking. This doesn’t happen. This is an exceptional violation of trust. This would have been unthinkable a few years ago, but that was before people assumed the duty to save humanity by violating rules and norms and becoming a hero.

Was the leaker a hero, or was the leaker a villain?

So whodunnit? I can think of three possible answers.

First, this leak may have come from the chambers of a liberal Justice. Under this theory, the leak was designed to create a backlash, and pressure a conservative Justice to defect from Alito’s opinion. But this theory makes no sense. If anything, this leak from a liberal chamber will entrench the five-member majority to avoid the appearance that the pressure campaign worked.

Second, this leak may have come from the chambers of a conservative Justice. Under this theory, the leak was designed to prevent a conservative Justice from defecting from Alito’s opinion. But this theory also makes no sense. If anything, this leak from a conservative chamber would infuriate a swing Justice, and push them out.

Any clerk must know that this sort of leak would ruin their careers, and possible disbarment or criminal prosecution. And a Justice must know that authorizing this leak would probably lead to impeachment proceedings. I do not think this leak came from a chambers.

There is a third option: the leak did not come from a chambers. I hinted at that theory in my initial post.  Rather, the leak may have come from someone with access to the Supreme Court’s draft opinions. And history suggest that this sort of leak is possible.

There is a difference between a clerk violating the confidence of chambers because a decision conflicts with their personal views, or as a cynical manipulation of justices’ votes, and a leak that comes from someone outside chambers. Or does it not matter?

Whoever leaked this has changed the course of a nation, perhaps rightfully or perhaps not. What if it turns out that this first draft doesn’t end up as the Supreme Court’s holding, and yet it’s now out there, doing the damage, nonetheless? There will no doubt be an investigation, and there are certainly clues as to the identity of the leaker which may eventually clarify what this was about. But will it matter by then?

In the meantime, whoever leaked this draft has at absolute minimum changed the course of events in American politics. Is that the act of a hero or villain, or does that characterization depend on whether you agree or disagree with the leak?

*Tuesday Talk rules apply.