The Supreme Court decision last year in Dobbs v. Jackson overruled Roe v. Wade, their 1973 decision that purported to find an abortion right in a U.S. Constitution that never mentions or alludes to it. Abortion is now rightly governed by the people’s elected legislators, and, sadly, to some extent by unelected bureaucrats, but, in any event, not by judges.
The Dobbs decision was leaked a couple of months in advance of its issuance. The effect of the leak was an outcry from abortion proponents, illegal protests at the homes of the conservative Justices, and an attempted assassination of one. The leak was unprecedented in over two centuries of Supreme Court jurisprudence.
Chief Justice Roberts turned the matter over to the Court’s marshal, a person not skilled in criminal law investigation. Apparently unaided or little-aided by the unlimited resources of federal law enforcement, she concluded that there was no “preponderance of evidence” to name the leaker.
In other words, she has her suspicions but did not succeed in confirming them. As I wrote some months ago, I think Roberts didn’t really want her to succeed, because he felt that the political turmoil from identifying the leaker would be yet another blow to the Court.
The author of the Dobbs decision, Justice Alito, recently spoke at the George Mason University law school, a place called “Scalia Law School” after the late, great Justice Antonin Scalia. Or rather, I should say he virtually spoke. His speech was by Zoom after the school decided they could not guarantee his safety. These days, he and the other conservative Justices need 24/7 armed guards and must travel in armored cars.
Alito offered his view on the identity of the leaker and the effect of the leak. It’s detailed in a piece by James Taranto, the excellent Features Editor of the Wall Street Journal (behind a paywall HERE).
Alito speculates that the leaker intended the effect that the leak produced. That speculation seems sound. It’s hard to believe that the leaker thought the effect would be anything different. The purpose was obviously to intimidate the conservative justices into changing their minds.
Perhaps in a case of psychological projection, the leaker underestimated the courage and resolve of the conservative Justices.
Alito dismisses the complicated theory that the leak was actually by a conservative Justice worried that some of the other conservatives were wavering in their votes. He notes that a conservative leaker would be physically endangering not just the other conservatives, but also himself.
I would also note that the leaked draft proved to be nearly identical to the final opinion. It’s not likely that Alito would have gone to that much effort in drafting a final, polished opinion if there were any doubt about gathering the necessary votes for it. And when the opinion was issued, it was unequivocally joined by five conservatives, none of whom expressed the slightest doubt about the holding. (Chief Justice Roberts concurred in the judgment upholding the Mississippi law at issue, but, typical of his compromising ways, said his preference would be not to outright overrule Roe).
Let’s get to the bombshell of Alito’s recent comments: “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody.”
Yikes. Let’s consider this.
Alito says it was not a conservative Justice, so that leaves only the three liberals, Justices Breyer, Kagan and Sotomayor, and their law clerks. (Justice Jackson had been nominated to replace the retiring Breyer but was not yet confirmed or on the Court.)
I rule out the law clerks, for several reasons. One, a law clerk would be jeopardizing a lucrative and powerful career as a lawyer, a career he’d worked toward for many years. The kind of people who graduate high in their law school class at Harvard and Yale desire lucre and power. People without that desire don’t get there.
Two, Alito would be too unacquainted with those law clerks to have suspicions about particular ones. They would be people he said hi to in the elevator.
That leaves the three liberal Justices. Before considering which it was, note that Alito’s seemingly cautious comment is, in the context of the cloistered decorum of the Supreme Court, like a loud fart in a quiet church. Alito’s comment was a shot across the liberals’ bow.
Viewed more sinisterly, it was a subtle but strong announcement that he has kompromat on them.
As for which of the three it was, I doubt it was either of the first two. Breyer and Kagan are just not that type. I disagree with most of their political positions over the years, but in my judgment they are not cut from criminal cloth.
So that leaves Justice Sotomayor. Self-described in her 2009 confirmation hearing as a “wise Latina” (this was before the left invented and imposed on them the insulting “latinx” moniker) she has been anything but. She snarks acerbically but witlessly at the conservatives in her opinions and even in oral argument as her fellow Justices sit just feet away from her at the long Justices’ bench.
I suspected Sotomayor at the outset and wrote a piece about my suspicions. I now think more than ever it’s Sotomayor, I think Alito thinks so, and I think history will say so.
Now I have a prediction. Sotomayor, a diabetic who is not in great health, will retire before a Republican president and senate are elected in 2024. Alito at the relatively young age of 73 will soldier on, fighting the good fight. I hope to read his memoirs where he says what he thinks about this, but not for a very long time.
Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.
“High Attitude – How Woke Liberals Ruined Aspen” is now published and selling well. You can find it at Amazon or Barnes and Noble.
the Aspen beat 
Congratulations Glenn, another great read.
Signed,
The-Dude-Who-First-Told-The-World-Sotomayor-Leaked
P.S. Don’t tell anyone, but, I’m in a King David state-of-mind.
So, who’s NEXT?
Very good point. I thought it would have to be a Justice who “leaked” to a clerk who “leaked” to a spouse who could then distribute material that is virtually unavailable without leaving a trace.
Your description of Sotomayer is spot on. When she was nominated I was aghast. She came off as an affirmative action choice that would embarrass herself and the Court. When she made the erroneous claim of 100000 children in the hospital with WuFlu it was proof she is a poster girl for “Often wrong but never in doubt.”
YEP!
Truth be told: After essentially evicting The God of Abraham, Isaac and Jacob, The God of The Nina, The Pinta and The Santa Maria, The God of The First Continental Congress, The Most Divine and Eternal YHWH, from the nation He inspired and richly -literally His Country- blessed, Chief Justice Earl Warren would zealously anointed the Coup of 1963 with the wickedly deceptive “Warren Commission” report. An unmistakable nail-in-the-coffin for both, true Democracy and the integrity of the special-interest serving cast of glorified political-appointees know as The U.S. “Supreme Court”.
Sorry, but “was probably” doesn’t cut it.
It works when they go after Trump. How many failed years now?
Sotomayor should be impeached if she did it.
Let’s put her in prison though just to be safe
Doesn’t cut what? It’s called a guess. Nobody is arresting her and charging her. So what remains to be “cut”? Oh you don’t like people making guesses? You must despise watching sports on television because that’s all the pundits and hosts of those shows do. “I think Kentucky has this game in the bag” doesn’t cut it? You come across as the kind of know-it-all who everybody hates. Why don’t you just STFU?
I would say that this Latina maybe is not so wise, but I wouldn’t want to mis-adjective her… Also, since this is unprecedented in the annals of American jurisprudence at this highest of levels, one wonders what the penalty would/should be. I”m sure it’s written down somewhere, but this has to be at least close to treason.
Frailty, thy name is Latina!
Alito’s flatulence (in cathedra, as it were) is good enough for me.
This inside-baseball rumination — yes, it’s **important** inside-baseball — is above my pay grade. But something in Glenn’s prior column on the subject (May 2, 2022 https://theaspenbeat.com/2022/05/02/the-lefts-leak-of-a-draft-supreme-court-opinion-overturning-roe-v-wade-is-unprecedented/ ) seems off: “And I doubt liberal Justices Breyer or Kagan would ever do such a thing – they’re libs with whom I often disagree but they’re also smart and ethical people.”
Kagan **smart**? She’s the wizard who said the following during WonderBoyCare’s first hearing before the Supremes:
“In other words, the federal government is here saying: we’re giving you a boatload of money. There are no, is no matching funds requirement. There are no extraneous conditions attached to it.
“It’s just a boatload of federal money for you to take and spend on poor people’s healthcare. It doesn’t sound coercive to me, I have to tell you.”
I’ll always associate Kagan with the word “boatload.”
Rush Limbaugh’s reaction: “Folks, this is why all week I have been urging you: Don’t think they’re smarter than you are. Don’t fall for that. Don’t grant them that. These are some of the most uninformed, ill-informed, arrogant, conceited people you will ever encounter.” (https://www.rushlimbaugh.com/daily/2012/03/30/elena_kagan_how_can_giving_a_boatload_of_money_to_poor_people_be_unconstitutional/ )
For good measure, here’s John Derbyshire, speaking generally some years earlier: “As I have explained many times to foreign friends, since it was explained to me by a learned man when I first came to this country, the justices of SCOTUS are not very exceptional persons. They are not even very exceptional lawyers.”
Of course, some **are** exceptional, such as Thomas, Scalia, and Alito. But Blackmun, O’Connor, Marshall, Brennan, Souter, …? Phoo.
Kagan is indisputably smart in an IQ sense. See https://en.wikipedia.org/wiki/Elena_Kagan
As for her word salad that you quoted, the same could be done to me or virtually any other person if one were to parse through thousands of recorded interviews. Everybody says things that, when transcribed, sound incoherent or even stupid.
That said, a high IQ does not guarantee wisdom or good judgment, and that may be the point you’re legitimately making. Sometimes, it’s quite the opposite. I would not make Bobby Fisher, Wolfgang Mozart or Albert Einstein the executor of my estate, the guardian of my children, or a Justice of the Supreme Court.
But Glenn, that wasn’t a “word salad” by Kagan. It was a substantive comment, revealing her profound ignorance of basics, like where “federal money” comes from. She deserves no respect.
Thomas, Scalia, Gorsuch, Barrett, and Alito could answer coherently the question: “What is a woman?”
Another great essay and the big mouthed wise woman was my first suspect
How curious — Chief Justice Roberts turned the matter over to the Court’s marshal, a person not skilled in criminal law investigation.
WaPo fact-checker: Can’t verify story promoted by Biden of 10-year-old rape victim fleeing Ohio to get abortion. Joe “I am the Democratic Party” Biden jumped on an unsubstantiated story first published by the Indianapolis Star about a 10-year-old rape victim who could not obtain an abortion in Ohio due to the recent Supreme Court Dobbs decision.”
https://mail.google.com/mail/u/0/#inbox/FMfcgzGpGwgqdrFFlltQnWFqWHFnCsNq
Don’t think for a second that the party of death didn’t pow-wow to get their unverifiable story straight. And they are proud of their deceit.
If Trump had committed the Biden verifiable incidents, he’d have been impeached 3 or 4 dozen times by now.
Only when abortion is consistently and publicly viewed as the “Big-R-racist” clear-cutting of humanity that it is, will people stop treating the killing of the innocent as “healthcare”.
I’d be happy to learn that it was Sotomayor, but I prefer the theory that Roberts himself leaked it in the hope that one of the majority would switch to his third way, leaving Roe in place by default.
Disbar her and fine her the costs for added security and the cost of the investigation.
I agree that it was Soto. She is from the same cloth as the anarchists of her political party. (Imagine if there was threats against her? She’d cry to the dims, and they’d hold hearings.) Likewise, she’s an activist judge and pretty dimwitted. Holds no candle to Thomas and Scalia. As a matter of fact, until we hear from Jackson which may change this summation, but she’s probably the weakest justice. Roberts right ahead of her.
However, that all said, I wouldn’t put it past a law clerk either. Either on their own or at Soto’s direction. “a law clerk would be jeopardizing a lucrative and powerful career as a lawyer, a career he’d worked toward for many years.”
Maybe if their ultimate (and it could be given the stature of being a SCOTUS law clerk) desire is to be a justice on the SCOTUS, they’d be hesitant, but as we saw with the riots in NYC, those two activist lawyers had no issue with fire bombing a police car. What were the repercussions? yeah…exactly.
And just like the Blasey Ford incident, I wouldn’t put it past that legal team to hire activist lawyers (so long as they’re effective with their written and oral arguments). So a destroyed career is probably not a concern. Likewise, have we seen any evidence that doing the will of the left would not garner praise and $$$? All it takes is to be a loud mouth and a perceived influencer (Bito, Abrams).
Actually, the two firebombers you mentioned have been sentenced. One got 72 months and the other got 15. They’re disbarred, and it’s highly unlikely they’ll ever practice law again. I call that repercussions.
wise latina? sure. like the occasional-cortex wise.
Remember: the wise Latina woman that would more often than not reach a better conclusion than a white male. ~Sotomayor.
I forgot that she’s also a racist…
And sexist.
Glenn what an amateur move!! You mention the title Supreme “Court marshal” but you failed to give her name — (?? perhaps Gail Curley ??) then you talk about her for most of paragraph 3 and 4. Are you really trying to convince anyone?? Ok I might agree with you (at least one of the liberal scum SCOTUS judges did this), but do I have to read an opinion so poor it would not pass middle school English?? POOR FORM Glenn. Please forget ever being a SCOTUS clerk….. BUT I do call the place WASHINGTON, DeCeit for a reason….. Not a place ANY conservative wants to be….. but the same goes for Colorado.
“WASHINGTON, DeCeit ”
OK.
How about “Sodom on the Potomac”?
Why does Gomorrah always get away with letting Sodom take all the blame? Gomorrah, in the general sense refers to “any place notorious for vice and depravity”. Washington DeCeit certainly falls into that definition.
Well Paul in Montana — I am very close to agreeing but at least SODOM had ONE virtuous man (Lot). Not sure who that would be right now in Washington DeCeit… Certainly not SCOTUS scum John Roberts… Honestly if we would go after Sotomayor over the leak — watch the recent Clarence Thomas headlines quietly disappear. The fact is America and our Constitution are under ATTACK from within and our side keeps trying to adopt a non-aggression pact with the demon_rats. Our current House leadership should see how Neville Chamberlain ended up… and yes Neville was a British conservative too… Must be in our DNA…. Sodom on the Potomac has merit — I might use your phrase too if you don’t mind…
Paul and Sandman respectively, you’re both correct in different ways – and so very topical actually:
The Book of Daniel 12:1 is HERE; Psalm 58:10-11 IN 2023!
Sure, Soto is a possibility. There are other possibilities, like a clerk who had friends at Politico. I don’t think we will ever know for sure, but this is like arguing who cut down a tree in a big forest right before the meteor strikes. Most people on our side don’t appreciate how big this decision was, and the extent of the political repercussions that will be escalating for decades.
Why doesn’t whoever leaked it just say they leaked. Afterall, wouldn’t that be the honorable thing to do? I don’t even know why we call them “Your Honor” anymore. And Glenn, damn, that photo, oye. Is that a Louder with Crowder cup? lol
SCOTUS Justices CAN BE IMPEACHED!
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The nation is a farce. Buckle up.
Hmmm… let’s break this down.
Sotomayor. Activist judge….. installed by Obama.
It’s been obvious from day one.
Quite Obvious. Born to parents, both of whom were Communists, raised by Communist grandparents, mentored by a Communist, and associated with Communists, Marxists, and radicals in college anyone who though Obama would be anything but a Communist during his campaign is a fool. Sotomayor is hardly qualified, nor is Brown-Jackson, another ‘Fifth Column’ plant