January 19, 2023: Report Drops on Dobbs Leak

Josh Blackman at Volokh Conspiracy has had daily Supreme Court history entries for the last five or so years. It appeared that he stopped but turned out to appear to be some sort of glitch. This might still be a problem since there have still been delays, including today, for what used to be automatic posts at 7 A.M.  

(Blackman is somewhat of a conservative troll but this was a more harmless thing that promoted case materials found elsewhere.)  

I used to read the blog -- was there for the original Affordable Care Act legislation discussions where multiple people made up reasons why it was unconstitutional. The blog had various "these constitutional provisions need limits even though there aren't any, so let's make some up" entries, including involving the treaty power.  

I stopped going but returned mid-last year. The history posts led someone to start his own entries, limited to actual opinions handed down as compared to things like birthdays. I also began to comment on the entries. One more chance for me to provide my .02.

January 19, 2023: Supreme Court releases the investigatory report regarding the leak of the Dobbs abortion opinion. David Lat discussed it and you can (1) see links (2) a conservative-friendly take.

Strict Scrutiny Podcast also had thoughts. Let's say, they were somewhat less supportive of the overall process than Mr. Lat. They also spoke about the original leak. 

The report begins with a court statement on the "grave assault on the judicial process" involved. No, it is not talking about the overturning of Roe v. Wade and Planned Parenthood v. Casey in the slipshod way provided. The "extraordinary betrayal of trust" is the leak of the draft opinion of Dobbs. 

There were other leaks of internal workings, including upcoming results. A full opinion? Not so much. Let me say I respect the privacy of the Court's inner deliberations. There are various benefits. Leaks might have its place. Not sure how useful this one was. 

The report officially announces that it is not clear who did it at least with a high enough level of assurance to say. I think some people know who leaked and are not telling. I do not just speak of the leakers and the reporters involved. We will know eventually.

There have been various assumptions on who leaked & people cite different names. Some note, e.g., that the leak seemed to freeze the conservative position in place, helping the five-justice majority over the more limited concurrence by Roberts. 

Others argued that there is a good case it was a liberal in part to promote electoral backlash. Why that would necessarily be improved by releasing it a few months early is somewhat unclear.

Ultimately, the biggest problem was the opinion itself. We had it because of the 2016 elections. It has already resulted in many problems and multiple deaths. It will continue to cause pain and suffering. The 2024 elections will continue the process by not providing a Democratic trifecta.

Instead, there will be some additional ways to limit the right to control reproductive liberty. How broad this will be remains to be seen.