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Monday, December 09, 2019

Chief Justice John Roberts, right

There's now another big leak from The United States Supreme Court, and this one's being unapologetically linked to the court's conservative wing. The Washington Post has a new story in which multiple sources describe how Chief Justice John Roberts was planning to further carve away at Roe v. Wade by giving the court's approval to the Mississippi law banning abortions after 15 weeks, but wanted to dodge overturning Roe completely.

The Supreme Court's other conservatives, however, essentially told him to pound sand. They wanted a full end to Roe, which is Justice Alito got the plum role of writing a hard-edged, theocratic-premised decision declaring federal abortion rights to be dead based squarely on the premises of his own personal religion and the rantings of an infamous 17th century misogynist and witch hunter.

This is not new news: That Roberts was not on board with the full ramifications of what the Alito wing of the court is pressing for was evident from Alito's draft opinion, which would not exist if Roberts was in the majority because Roberts would never have assigned the most controversial decision of his tenure to the archconservative crackpot Alito to begin with. Alito is known for authoring spite-riddled opinions riddled with dishonesty and omissions to get to his desired end point, which is often simply a long-winded declaration that my personal religious beliefs are supreme and your religious traditions are invalid. He is the voice of the reactionary Republicanism that justifies coup attempts and declares that laws mean different things based on whether a Republican or a non-Republican will be inconvenienced by them. An extremist, through and through.

What's more interesting is that now the court is leaking again, and this time it's quite obviously an intentional leak by conservatives to either prop up Roberts' fast-eroding dignity or to further brag of the conservative wing's willingness to erase Roe outright.

"But as of last week, the five-member majority to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter," reports the Post. Oh, so now numerous people "close to the court" are leaking information about the court's private deliberations and politics—and we're even allowed to know that it is in fact "conservatives" close to the court who are doing the leaking.

"A person close to the court’s most conservative members said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now. But the other conservatives were more interested in an opinion that overturned the precedents, the person said."

That's a pretty huge leak! (In the before times, it would have been considered such an abhorrent breach of current deliberations that the Post would seek out a conservative crank like Michael Luttig to moan about the "historic" and "tragic" breach of the "confidential deliberative process"—which the Post does, at the end of the piece, so Luttig can say those things about the original Alito leak but not this one. Conspicuously: Not this one.)

So now we've got a whole set of conservatives privy to the court's internal deliberations who are all coming out at once to assert that Roberts wanted to again sabotage Roe by chipping away at its foundations, allowing Mississippi to enact an encompassing 15-week ban despite Roe and Planned Parenthood v. Casey, but he was unanimously rejected by the court's other conservatives who all voted to erase Roe entirely.

The motive that comes easiest to mind, when wondering why so many people close to the court are willing to leak deliberations to the press even as John Roberts orders an investigation into the leak of the Alito draft, is legacy-polishing. Roberts may be pressing this new leak himself, in an attempt to distance himself from the extremists and signal to Republican powerbrokers in the Senate and elsewhere that no, he indeed tried to stop his fellow conservatives from doing the most election-rattling thing, and he is still committed to his own brand of judicial activism that knocks away precedents incrementally rather than all-at-once. It is an approach that has allowed Roberts to claim plausible deniability even as the extremism of the opinions themselves keep getting ratcheted up, and one that has damped public anger at his party's reactionary actions by premising each one on an assortment of caveats that muddle the true scope of the outcome.

In this scenario, it's Roberts who is pressuring his allies to leak to the press for entirely self-serving reasons. He's long been devoted to preserving the alleged independence and dignity of the court—even as Republican presidents and senators stuff his court with new members who don't give a damn about those things but instead were chosen for their willingness to embrace extremist opinions—and could be pushing this story as pushback to calls to expand the court, impose term limits, or make other reforms to bring the court into something even vaguely resembling the modern era.

But that's a pretty weak reason for once again shattering the supposed all-important prohibition against leaking internal court decision-making, and there's another possible motive for the leak, from other possible leakers. It is possible the Alito draft was leaked by some conservative close to the court, perhaps some conservative anti-abortion extremist and activist who is married to one of the most conservative justices and who has already shown a willingness to break the laws in any manner the extremists desire, or maybe even not that person, and it is possible that this new leak featuring multiple "conservative" court sources is a simple case of bragging.

The court's most extremist members won, and there's not a damn thing anyone on the court or off it can do about it, and because of that one of the defining culture wars of the last half century is about to be "won" by its devoted soldiers. It doesn't require much imagination to believe that the court's conservatives have been bragging mightily among themselves and to their allies about this outcome, and it doesn't require much imagination to believe that those to whom they've bragged are even now gearing up for very gaudy victory celebrations.

So yes, perhaps those allied with the court's most reactionary justices would be quite happy to leak to the press that John Roberts tried everything in his power to keep the extremists from taking the "boldest" possible action, and not only did the reactionaries reject him, the group even assigned the ever-nasty Alito to write the nastiest majority opinion he and his clerks could muster.

We now know for a fact that multiple "conservatives" close to the court are leaking like the Moskva. Will condemnations again roll in? Will Roberts launch a second investigation to parallel the first?

Well, no. But we still know that it's court-connected "conservatives" doing the leaking because that's how they're willing to identify themselves to us. We just don't know whose boots they're trying to polish by doing it.

Reprinted with permission from Daily Kos

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