The SCOTUS Leak: Cui Bono?
Ross Douthat has a short, simple, and persuasive analysis of the motive and effect of the SCOTUS leak. First, he considers the rationale behind the leaker being a conservative:
So if you were simply following a crude strategic logic, the fact that what’s been leaked is a draft from months ago might suggest that a leaker on the conservative side hopes to freeze a wavering justice — Kavanaugh being the obvious candidate — into their initial vote, by making it seem like the very credibility of the court rests on their not being perceived to cave under external pressure.
But Douthat doesn’t seem persuaded by that, and neither do I. Next he considers the case for a liberal leaker. Among the rationales:
Second, as the court has moved rightward, the climate in the left-leaning part of the elite legal world (which is to say, most of it) has become much more self-consciously activist and anti-institutionalist than the climate among, say, Federalist Society types — meaning that if you were betting on a big act of institutional sabotage right now, you would bet on it coming from the left. (And indeed, the leaker was swiftly praised by prominent voices on liberal-legal Twitter.)
Third, you can imagine various possible rationales for a liberal leak. At the most basic level, there might be the hope that seeing the inevitable backlash unfold now, while the ruling can still change, could make a figure like Kavanaugh waver further, rather than locking in his vote.
Then, too, to the extent that liberals hope abortion could be a galvanizing issue — for organizing and fund-raising as well as votes — in a midterm election that’s otherwise shaping up disastrously for the Democrats, the leaker might see this as giving his or her side a head start, by encouraging the new Resistance to get to work a month early.
And finally, to the extent that a leak like this has some delegitimizing effect no matter what, that might be an end unto itself: If the court is going to be conservative, then let it have no mystique whatsoever.
Douthat says that he expects the Left will arrive at that final conclusion anyway, and observes, insightfully, that this was always where the Court was headed when the Burger Court in 1973 took abortion out of the political realm through shaky judicial fiat.
On NPR yesterday, Nina Totenberg explained why this leak is such a huge deal:
TOTENBERG: Because it’s a huge breach of trust. The justices operate like nine tiny little law firms, and they respect each other’s confidences, and they trust not only their clerks, but other justices’ clerks as well. This is a total betrayal, sort of like a partner in a marriage cheating on the other partner, except that it’s never, ever happened like this before, at least going back over 100 years. Yes, there have been tiny leaks, like about a changed vote, for instance, but even those leaks you can count on one hand. This was an entire draft opinion, 98 pages, 118 footnotes with seeds planted all over the place to undo other precedents.
We all know that the Supreme Court, though supposedly apolitical, is unavoidably a political institution. Yet it is in the best interest of our constitutional order that the Court strive to remain as far above politics as it can. As Douthat avers, at least since the Robert Bork hearings, blown up by Sens. Kennedy and Biden, SCOTUS nominee hearings have been a political spectacle, with nominees compelled to shade the truth or be otherwise evasive about controversial opinions to prevent themselves from being tarred and feathered by politicians. It’s important to point out that the Left started this, and it started it in large part over abortion. Here is what Sen. Kennedy said on the Senate floor upon hearing the news of the Bork nomination:
The Republicans don’t have clean hands either. Majority Leader Mitch McConnell’s stalling and eventual spiking of the Merrick Garland nomination to the Court was also pure politics. But the standard was set by the Democrats, with Robert Bork. And now, I suspect that the leaker of the Alito draft was a liberal court clerk who was willing to blow up the institution in an effort to save Roe.
It’s all part of the ongoing delegitimization of American institutions by the Left. If they can’t have their way, they’re going to tear the place down. I had a conversation last year with a progressive journalist at one of the top media outlets in the US, who confirmed to me that the panic that ran through elite journalism after the 2016 Trump victory was so extreme that nearly everyone in those circles concluded that there was no point in playing by old-fashioned professional standards. This person didn’t agree with that choice, but they said that was what happened.
It’s still happening.
People wonder why I like Viktor Orban. It’s because he has the number of these people, and he understands that their claims of liberalism are just a pretense for the illiberal assertion of power. What has happened this week with this leak is another sign that conservative politics in the US had better learn from Orban, or there won’t be a conservative politics by the time the Left and the institutions it has captured gets done with us.