Thoughts About the Supreme Court Leaker
The Left opposes the right to keep and bear arms, which is expressly guaranteed by the Constitution, almost as much as it supports abortions, a right to which is nowhere to be found in that document. So, why was there a leak of the Supreme Court’s draft opinion in Dobbs v. Jackson Women’s Health Organization (2022), but not in District of Columbia v. Heller (2008)?
The Left threw fits when Heller stated that the Second Amendment guarantees a private, individual right to keep and bear arms. Justice Ruth Bader Ginsburg, who joined the dissents in Heller, compared Heller to the Court’s now-massively-unpopular decision in Dred Scott v. Sandford (1856). She also told the New York Times that Heller was a “very bad decision” and “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” But despite opposing the right to keep and bear arms, neither Justice Ginsburg nor anyone on her staff leaked Heller’s opinion, written by Justice Antonin Scalia.
Justice John Paul Stevens dissented in Heller. He retired from the Court in 2010 and, in an interview with the leftwing PBS News Hour in 2019, indicated that he, too, wanted Heller overturned. He also complained in the leftwing magazine The Atlantic that Heller was “the most clearly incorrect decision that the Supreme Court announced during my (35-year) tenure on the bench.”
Proving French historian Alain Besançon’s point that “it is not possible to remain intelligent under the spell of ideology,” Stevens claimed in his dissent that “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia,” a statement that could be read as endorsing the so-called “states’ right” or “collective right” theory of the amendment, invented by the U.S. Court of Appeals for the Third Circuit in U.S. v. Tot (1942), which claimed “this amendment . . . was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.” (Emphases added.)
However, in Heller, the District proposed the so-called “sophisticated collective right” theory of the amendment, adopted by the Kansas Supreme Court in Salina v. Blaksley (1905), which said that the amendment “applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law.” The remainder of Stevens’ dissent suggests that is what he had in mind and, in The Atlantic, he endorsed that theory more certainly, claiming that in U.S. v. Miller (1939) the Court “established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia.”
The “states’ right” and “sophisticated collective right” theories are not only incorrect, they’re mutually exclusive. They’re incorrect not only because the amendment protects a private, individual right, but also because under the Constitution, states do not have “rights,” they have “powers” (e.g., 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”), and militias are military organizations, thus their members bear arms not by right, but because they are ordered to do so. The two theories are mutually exclusive, because one purports a “right” of a state, while the other purports a “right” of a soldier.
Furthermore, contrary to Stevens’ assertion, Miller recognized that the amendment protects a private, individual right and the Supreme Court recognized the same thing in U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), and U.S. v. Verdugo-Urquidez (1990), the latter’s majority opinion with which Stevens concurred.
Also, notice that in The Atlantic, Stevens referred to the right to “bear” arms, rather than, as the amendment states, the right to “keep and bear.” The reason? “Keep” means “at home,” which, Stevens knew, proves that the amendment guarantees a private right. On top of that, in 2018, Stevens called for the amendment to be repealed, a tacit admission that the amendment guarantees the private right to arms he opposed.
There’s one other thing: People have speculated that Dobbs was leaked to pressure one or two justices to change their votes to the pro-abortion side. In The Atlantic, Stevens said that before Heller was decided, he tried, unsuccessfully, to convince Justices Anthony Kennedy and Clarence Thomas to come over to his side. Yet despite being “under the spell of ideology” and having attempted to sway one or two justices in Heller, neither Justice Stevens nor anyone on his staff leaked Justice Scalia’s opinion.
Justice Stephen Breyer, who also dissented in Heller, dissented in Dobbs and, one day earlier, in New York State Rifle & Pistol Association v. Bruen, which overturned New York’s outlier restriction on the issuance of handgun-carrying licenses.
Breyer is smug and arrogant. He once said that residents of Washington, D.C., where handguns were banned for 30-plus years before Heller, could go to Maryland if they wanted to practice shooting handguns. And in an interview (at 1:57) on the boob tube, Breyer said that he knew better than Alexander Hamilton what the Second Amendment means. (In The Federalist No. 29 and No. 28, Hamilton endorsed the armed citizenry as a hedge against tyranny. In Heller and in McDonald v. Chicago (2010), Breyer opposed having a handgun for protection within the home and anywhere else.)
But neither Justice Breyer nor anyone on his staff leaked Heller or Bruen, so it’s difficult to imagine that he or someone on his staff leaked Dobbs. It’s difficult to imagine that any justice would have had a role in the leak. Even if for no other reason, he or she would have known that a leak would result in an investigation and, if identified as the culprit, his or her role on the Court would forever been undermined. That might not matter to Justice Breyer, who retired from the Court soon after the final Dobbs opinion was made public, but that coincidence constitutes no evidence of wrongdoing on his part.
If the justices who were on the Court for Heller and Dobbs didn’t leak the former, thus probably didn’t leak the latter (and that also includes Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, all three of whom were part of the majorities in both decisions), what about the five justices who were not on the Court for Heller, but were for Dobbs? The five are Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who were part of the Dobbs majority, and leftist Justices Elena Kagan and Sonia Sotomayor, who dissented. If it is correct that the leak was intended to convince the majority’s justices to change their votes, the attention would be upon Justices Sotomayor and Kagan.
However, an article about Justice Kagan in the November 11, 2019 New Yorker suggests that she is keenly respectful of the Court’s traditions and is intent on working with her more conservative colleagues. Some have suggested that Justice Sotomayor is an activist who sees her role on the Court as promoting what she considers the interests of Hispanics, particularly Hispanic women. But if true, that doesn’t come close to evidence that she betrayed the Court’s trust by leaking Dobbs.
A clerk or, if one had access to the Dobbs draft, an intern might be another story. If the purpose of the leak was to pressure one or two justices to vote with the pro-abortion side, it is more likely that a clerk or intern is the culprit, because the justices regularly hold closed-door meetings about pending decisions, thus they know how their colleagues are going to vote, and if there is any persuading to be done, it’s probably done in those closed-door meetings. That’s presumably where Justice Stevens tried to convince Justices Kennedy and Thomas to join him in voting against the right to arms in Heller.
Clerks and interns aren’t allowed in those closed-door meetings, thus don’t know what the justices have discussed among themselves, and one might have therefore overestimated his or her ability to pressure a justice to change his or her vote by leaking.
Some have suggested that because Supreme Court clerks typically go on to make huge salaries in the legal profession, and some even become Supreme Court justices, none would risk jeopardizing his or her professional future by leaking. However, consistent with the Left’s history of acquiring and maintaining power by any means necessary, many Leftists believe they are entitled to do whatever they want in support of their belief system—riot, attempt to assassinate Republican congressmen, threaten to assassinate Supreme Court justices, steal elections, “SWAT” conservatives’ homes, and harass conservative politicians and Supreme Court justices in restaurants. Perhaps even at the expense of embarrassing the Supreme Court justice for whom one of them works. And in the last few years Leftists have seen their ideological brethren get away with crimes far more serious than leaking, with no consequences. And they have seen Leftist wrongdoers end up making six figures as talking heads on CNN.
It has been over two months since politico.com published the leak, and the leaker’s identity is still not publicly known. If the Marshal of the Supreme Court has adequate investigatory power and has pursued her investigation vigorously, it is possible that the leaker has been identified and Chief Justice Roberts is waiting for the “right time” to let the public in on the details. Or, to avoid embarrassing the justice whose clerk or intern is the culprit, the Chief Justice may tell us that the matter has been dealt with internally and ask the public to consider it water under the bridge.
If that’s the case, we may have to add the mystery of the leaker to the list of things the government doesn’t want us to know about, like whether extraterrestrials crashed in Roswell, New Mexico in 1947, the names of everyone involved in President John F. Kennedy’s assassination in 1963, and how few legitimate votes Joe Biden received in 2020.
© 2022 Mark Overstreet