[First Things] This week's leak of the draft majority opinion in Dobbs, the Mississippi abortion case, is unprecedented. Leaks from the Court have occurred before, but this leak is different, a potentially shattering event, both because of the leaker's probable motives and the leak’s probable effects. Most likely, the leaker set out to intimidate one or more of the justices and affect the outcome of the case. Alternatively, the leaker hoped to destroy the Court as an institution -- in the approving phrase of one progressive commentator, to "burn this place down." The long-term consequences of the leak may be severe.Past leaks from law clerks typically have come after the Court has issued a decision. They often seem explained by desires to set the record straight for history or, perhaps, to demonstrate the leaker's own significance (which, as a former clerk, I can attest to be typically little). If they come before a decision, leaks are usually spare and vague, hints at a likely vote tally or outcome. Such leaks do little to change the day-to-day workings of the Court.
But the leak of an entire draft opinion in the middle of deliberations in a vitally important case suggests something very different, a desire either to bully or destroy the Court as an effective institution. After this episode, justices will feel less secure about the confidentiality of their deliberations and think twice about what they put in drafts. The work of the Court will inevitably suffer. That is what makes this leak so damaging, however one feels about the ultimate issue at stake.