The identity of the leaker is as obvious as it is painful, and the cause is far scarier than the loss of Roe.
What’s the best way to hide something? Right out in the open.
After last Tuesday’s shocking Supreme Court leak, I and a friend of mine — a man I consider a very principled attorney but with whom I don’t always agree — came to the same question: who would even do such a thing?
After all, the Supreme Court and its staff is a very small, tight-knit group. Each justice is allowed four clerks (the Chief can have five but rarely does). So, in total, between the 9 justices and their clerks, the maximum number of people with the physical ability to leak a draft opinion stands liberally at around 50.
Given such a small pool of suspects under such tight constraints, even a half-wit fictional detective could narrow down the offender pretty quickly in the age of metadata.
What’s more, the risk associated with discovery is overwhelming. After all, despite whistleblower protections, it’s questionable whether they’d even apply here. Even if they did, stuff rarely goes well for whistleblowers. This is even more true in professions bound by strict oaths of ethics.
It’s not easy to become a Supreme Court clerk. The positions are reserved for the ‘cream of the crop’ with often venerable and lucrative future careers to protect.
Bound by so much personal and professional investment, a deeply entrenched code of ethics, and among a group so small that discovery is certain, who would take such a risk?
Right on cue, subsequent headlines are all about answering that question. GOP lawmakers and Chief Justice Roberts came out swiftly to express outrage and vow retribution. But Roberts also made sure to affirm the validity of the draft, classifying the act as an “egregious breach of trust.”
But, among the American public, there is no more trust to violate. The automatic assumption on the left is that it was a whistleblower, seeking to energize opposition to the destruction of such a fundamental and publicly popular precedent. And, given the GOP’s vow to expose and punish the culprit (a once-routine application of justice that now only applies to their opponents), such theatrics are clearly meant for us to believe they think so too.
And while well-reasoned (if unlikely) theories abound, they all share one thing in common, they’re far too sophisticated for the actual answer our political system keeps demonstrating over and over: namely, the obvious one.
No one would take such a risk…unless they’re not a whistleblower, but rather a plant; one with strict instructions and the highest levels of protection in a political system that is too far gone to be saved.
There are plenty of very obvious reasons why the GOP would want a landmark ruling that surely violates any caution of a slippery slope to come out now rather than in July — just a hop, skip and recess before a midterm election that most pundits all but guarantee will go well for them.
If you’re tempted to dismiss this as a conspiracy theory: resist. After all, Gorsuch, Kavanaugh and Barrett are all plants of sorts. One seat stolen openly, without recourse. Two appointed without any standardly applied qualifications — one with a shockingly volatile temperament. All of which handpicked by powerful political donors openly aiming to overturn Roe. All of which dissembled or lied about it being precedent or settled law in either their talks with lawmakers or hearings under congressional oath, nationally televised and in the age of social media.
In a functioning political system, no one with so much to lose would act so recklessly. But for people who have already been assured — by people with the power to do so — that they’ve nothing to lose and everything to gain, such behavior isn’t reckless at all. It’s calculated. Corrupt? Sure. But lucrative and without consequence.
Who has the power to guarantee such protection? Well, sadly for us, the people in charge of our political system and entire way of life. People who know that voters are powerless as long as legislators refuse to legislate and the legal system wrings its hands instead of imposing swift accountability — in obvious accordance with both the spirit and the letter of the law.
Consequences can only be applied by a legal and political system that believes in something higher than the self-interest of each individual within it and the protection of a filthy rich donor class that has made pay-for-play the defining feature of our ‘democracy.’
This isn’t an egregious act in today’s America. It’s a standard one. In a system that can’t even remove a twice-impeached president or prosecute him for orchestrating a coup — much less a host of financial crimes he’s publicly admitted to.
How long does one stand on ceremony before the ritual itself becomes obsolete? We’re just one inalienable right away from finding out.
