The optimal amount of SCOTUS leaks is not zero: reply to Mark Movsesian

Here, I will reply to Mark Movsesian’s essay “Why the Dobbs Leak Is Dangerous“, an op-ed that was published in First Things on May 5, 2022. (I am late to this party because on that day my wife and I were in Plaza Garibaldi in Mexico City celebrating our 10th wedding anniversary.) In summary, for Movsesian, a law professor at St John’s University and a former SCOTUS law clerk, the leak was bad for the following two reasons, one Kantian, the other consequentialist: (1) because the motives of the leaker were bad, and (2) because, regardless of the leaker’s motives, the leak will produce bad consequences.

The first argument is the lamest and weakest of the two. Why? Because Professor Movsesian himself has no idea what the true motives of the leaker were. According to Movsesian, the leaker was either a “conservative” agent trying to keep Alito’s anti-abortion majority intact or a “progressive” proxy trying to intimidate one of the anti-abortion jurists into changing their vote. Either way, however, my response is, So what? The fact that we can assign such diametrically opposed motives to the SCOTUS leaker shows just how irrelevant the leak is in the greater scheme of things.

This observation takes us to the second of Professor Movsesian’s two arguments. In brief, Movsesian claims that the leak does matter, that it will somehow “destroy” SCOTUS as an institution. Specifically, Movsesian’s argument is that, by leaking an entire draft opinion, the leaker will cause the justices to “feel less secure about the confidentiality of their deliberations and think twice about what they put in their drafts.” Really? Is that all you got? Putting aside the fact that maybe the Supreme Court should be taken down a notch or two (Exhibit A: Bush v. Gore), that is exactly why the leak was probably, on balance, a good thing. Simply put, in cases involving hotly-contested political issues, we want our judges to be more careful and more cognizant of their decisions. That is, maybe we want our judges to “think twice” about whether they should be deciding political cases at all. (Exhibit B: the Dred Scott case, which led to a civil war.)

So, instead of impugning the motives of the SCOTUS leaker or accepting the need for secrecy at face value, we should be thanking the leaker for exposing the machinations of SCOTUS judges to the wider public. (I will conclude this series with “a modest proposal” in my next post.)

Marlette cartoon: The SCOTUS leak

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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