What Was the Strategy Behind the Supreme Court Leak?

The leak of a draft Supreme Court decision that would overturn Roe v. Wade is not a surprise, but it is something of a mystery.

What’s unsurprising is that the accelerating politicization of the judiciary that began with Roe itself would overwhelm attempts to sustain an apolitical charisma around the operations of the court. Every development and controversy and scandal along the way — the Robert Bork and Clarence Thomas hearings, the multistage death of the filibuster, the pocket veto of Merrick Garland, the Brett Kavanaugh affair, the liberal enthusiasm for court-packing — cut away some element of the apolitical illusion. The leak of a draft decision, a violation of the secrecy around deliberations, is another escalation, but it’s part of the same pattern, the same trend that’s defined judicial politics for two generations now.

But the mystery lies in the strategy behind the leak.

All we know right now, from the leak and related reporting, is that Samuel Alito’s draft reflected the breakdown of the court about three months ago, when his draft first circulated — five votes to overturn Roe and Planned Parenthood v. Casey, three votes against, John Roberts in the middle. But plenty of decisions have changed between the initial vote and the final ruling, including the Obamacare decision in 2012 (where Roberts switched sides) and Casey itself (where Anthony Kennedy wrote the decision upholding abortion rights after initially voting to overturn Roe). And in this case, it always seemed imaginable that an initial stark split would give way, through some kind of intra-judicial persuasion, to the kind of minimalist ruling that Roberts in particular favors.