Roe v. Wade leak – what we know

The Roe v. Wade Leak is now over thirty-three hours old. Seemingly endless speculation has accompanied it. The time has come to examine the hard facts and think critically – like a judge – about the leak. Because the two major questions we must ask are: who made the leak, and who else knew about it?

The Roe v. Wade document is real

First and foremost, Chief Justice John Roberts has definitively certified the document as authentic. That hard fact stands out in his statement, that has all the outrage one would expect. The Daily Wire copied the statement on its Twitter account:

Let us examine the most salient excerpts:

… the document described in yesterday’s reports is authentic …

The Chief Justice should know, because he would have seen the original document and would recognize its image.

… it does not represent a decision by the Court or the final position of any member on the issues in the case.

True, as far as that goes – because it was, after all, a first draft. First drafts circulate to all other Justices. Then any member may join the opinion, write a concurring opinion, or write a dissent. The by-line for any majority opinion always takes the form:

Justice A, writing for the court, in which Justices B, C, D, E, … join.

Beyond that, the final draft always addresses each dissent, quoting it briefly and then rebutting it. When you understand this, you see that you cannot infer that the opinion will necessarily conclude differently.

The Court will not let anyone intimidate it

Next, John Roberts projects defiance. If anyone thought they would “undermine the integrity” of Court “operations,” they will not, said the Chief Justice. After that, he speaks of a “workforce … loyal to the institution and dedicated to the rule of law.” But now someone has violated that trust, and that has made the Chief Justice understandably angry. Naturally he has called for an investigation.

And that is all we reliably have from the Supreme Court. We cannot know how any other member feels about it; we can only guess. And guessing is not a useful exercise here. As Flight Director Gene Kranz no doubt said after a fuel cell aboard Apollo XIII blew up:

Let’s work the problem! Let’s not make things worse by guessing!

Who did it, and why?

Most people seem to think a leftist law clerk made the leak. Since the document is real, that’s how it must have happened. Someone:

1. Stole a hardcopy off a Justice’s desk in chambers,
2. Ran it through a Court copying machine,
3. Put the original back where he found it so the Justice wouldn’t notice, and then
4. Gave the copy to Politico.com.

So who could have done it? The clerk could have been clerking for any of the Justices, but most likely was clerking for a liberal Justice. That would mean Breyer, Kagan, or Sotomayor. As it happens, Justice Sotomayor has a reputation for intemperance on the bench. Observe, for instance, her conduct of oral argument in the Vaccine Mandate Case.

She literally couldn’t keep facts straight. And according to witnesses, she always hires the most radical of clerks.

CNAV has heard almost as many theories as people offering them, to say: why did they do it? Did the people involved seek to intimidate the Court or some of its members? Or did they seek to galvanize their fellow leftists into voting in primary and general elections this year? Or merely to distract the public from Joe Biden’s mental fog and policy failures?

Who knew the Roe v. Wade document would leak ahead of time?

But Chief Justice Roberts, and the Marshal of the Court, have another problem. Whoever leaked the document had help from others. Why did “riot barriers” go up around the Supreme Courthouse ahead of the leak? How could an angry mob ready to picket the Court assemble so quickly? Someone tipped them off. And whoever did that, also made sure the barriers would be up so they could not enter. Nor would those barriers have gone up if someone did not know that a need would arise for them. For that reason, we now have to ask a Watergate-style question:

What did the Chief Justice know, and when did he know it?

Of course, leftist politicians and activists expressed their usual outrage, whether that was real – or fake. But David Kamioner at LifeZette suggested that the leak will only backfire. According to his theory, Roberts and the other members will “double down” on scrapping Roe, as a matter of honor.

Associated Press staff report that pro-life activists are already planning for the next phase: legislating State by State in a post-Roe world.