Several people have asked if we are going to weigh in on the draft opinion in Dobbs. It is not a final decision and we don’t have the final opinion, concurrences, and dissents. It may have changed dramatically over the process of debate between the justices.
The leak was intended to disrupt the processing of the decision and we are not going to dignify the leak or the unidentified leaker by analyzing it prematurely. As a constitutional republic we cannot go down that road without doing severe damage to the institution of the Supreme Court where there must be professional courtesy between the justices and their staffs.
The leak introduces an unprecedented freezing effect between justices who are supposed to deliberate with each other with an expectation that their conversations and drafts are confidential until they are all ready for the release.
Some will disagree and demand a judgment on the judgment now, but my approach based on my understanding of legal ethics is to ignore it and discard it as we would other confidential legal correspondence between other parties that was not meant for our eyes. We won’t do it.
