The big tell for me was when Senate Minority Leader Mitch McConnell (R-Kentucky) came out with grave concern over the leak of a Supreme Court draft decision about ending Roe V Wade.
The leak was “lawless,” he thundered to reporters on Tuesday. It’s “an attack on the independence of the Supreme Court.” The “radical left” is trying “to bully and intimidate federal judges and substitute mob rule for the rule of law,” said the most cynical man in government.
Hahahaha! Is anyone falling for this stuff anymore?
Ever since Politico leaked a 98-page draft ruling by Justice Sam Alito that would overturn Roe v. Wade, there have been constant headlines and hand-wringing about the leak, the leak, the leak. (Cue the “Razzle Dazzle” song sung by Richard Gere in the movie “Chicago.”)
Indeed, what started as an incredible scoop by Politico reporters Josh Gerstein and Alexander Ward by midday had turned into a cascade of moral outrage about a “legal insurrection,” a term that started trending on social media with a conscious poke at the actual insurrection of Jan. 6, 2021. The reporters’ motives were questioned, as were, naturally, the motives of the evil leaker.
For those of you who are confused, still trembling from the earthquaking news that a woman’s constitutional right to choose not to have a baby is about to come to an abrupt end, are you wondering why there’s so much noise about the leak?
It’s a diversion, folks. It’s not a real thing. McConnell isn’t really concerned, come on now. There’s a script. There’s a bevy of Republicans out there using the same language – referring to the leak as an “insurrection” – and trying to keep the focus on their concern over the leak.
Because if you focus on the leak, and if you give moral mind share to what is being portrayed as a body blow to the integrity of the Supreme Court because the high court’s rulings have almost never been leaked before they are issued, then perhaps you will not notice that a constitutional right has been ripped from you.
Yes, a constitutional right supported by a vast majority of Americans is about to be ripped from us.
The focus on the news leak is all the more interesting, since you might have thought that right-wing politicians would be crowing with delight over having finally achieved their aim, strategized bit by bit over decades. But no – they are only talking about hunting down the leaker, punishing that person, whoever it may be. Sen. Ted Cruz (R-Texas) went so far as to baselessly claim it was a “left-wing law clerk.”
There’s a ton of speculation, and rightfully so, about who might have leaked this document. More than one history buff has noted that no Supreme Court decision has been leaked in advance since, ironically enough, the original Roe v. Wade decision back in 1973. Before that, you’d have to go back to the advance leak of the Dred Scott decision in 1857, which infamously ruled that Black people could not be citizens and slavery must be permitted in federal territories. (Lincoln later ended slavery, rendering this decision null and void.)
The quick conclusion is that a left-wing justice or assistant leaked the draft opinion, written back in February, to set off a three-alarm political fire. Indeed that might be the case, and it certainly seems to be mobilizing a movement of motivated, angry female voters. (Though the motivation needs to last through to November.)
Another school of thought gained steam with many savvy observers, including Yale law professor Amy Kapcynski, that the leak must have come from a right-wing camp inside the court.
“If you work inside the Court, you know that the most concrete impact of the leak is to lock in this opinion essentially as is. Any edits at this point reveal jockeying between Justices, undermine the majority, and Court itself. Embarassing to the majority,” she wrote on Twitter. “Far and away most likely impact of the leaked draft is that it locks in 5 votes for this opinion, essentially without edits. Who would want that? So: This is about as extreme an opinion as you can have overturning Roe.”
UCLA law professor Joseph Fishkin wrote in the same vein on Twitter: “Once the draft is leaked… any post-leak wavering looks more political and less principled, because now everyone is editorializing and pontificating about the draft, in all directions. No Justice likes *looking* political.”
Regardless of who’s responsible for the leak – and as a journalist I generally encourage whistleblowers – that issue isn’t nearly as seismic a worry as the ruling itself.
But a conclusion might be drawn that, once again, a disciplined force on the right is leading us to a world of minority rule.