On Tuesday, my family group chat was lighting up, popping off, being preposterous, things of that nature, for the same reason every other chat was. The night before, Politico published a leaked draft of the Supreme Court opinion on Dobbs v. Jackson Women’s Health Organization — a case on a Mississippi abortion ban that was widely expected to overturn Roe v. Wade, and without significant pivots from the conservative justices, almost certainly will.
In the aftermath of Politico’s scoop, conservatives and procedure-obsessed centrists seized on easily the least consequential aspect of the draft: that it had been leaked. This was, at worst, a transparent ploy to divert attention from the Court’s widely unpopular ruling; at best, a knee-jerk allegiance to a flawed court which lost any pretense of legitimacy after the mad-dash confirmation of handmaiden Justice Amy Coney Barrett. To my mind, the bigger concern is the possible rollback of a basic human right and the unsubtle overtones that others might follow. But that’s just one blogger’s take.
For an unelected body with lifetime appointments, the Supreme Court operates with extremely little transparency, much to the chagrin of anyone trying to hear Justice Stephen Breyer flush (allegedly) on a Zoom version of juridical C-SPAN. And while there have been leaks from the Court before, including during Roe itself, a full majority opinion draft has seemingly never been published before a formal decision. The leak is also a mystery. It is more fun to play armchair detective than to imagine how this ruling will force millions of women into unwanted or dangerous pregnancies, and how the Democrats will fail, again, to do anything about it. That brings me back to the group chat, where we were guessing about the leaker.
There are several possible theories about the culprit — a left-leaning whistleblower, a far-right clerk, a hacker, Chief Justice John Roberts — all but the latter of which are plausible. New York magazine did a good job unpacking most of them here. They did not, however, mention my parents’ theory, which was what a 20th century British poker player might call a “wildcard,” and one shared mostly by anonymous accounts in Twitter replies. It was somewhere on the spectrum between “so crazy it just might work” and “so crazy it is, in fact, incorrect.” It was Ginni Thomas, the wife of ultraconservative Justice Clarence Thomas.
For the unfamiliar, Thomas is a fire-breathing activist, with extensive ties to high-profile conservatives and a conspiratorial bent, whose Margaret Thatcher-ish exterior belies a much dumber and Trumpier core. For example, she once joined a cult called Lifespring — founded by a former mail fraud convict, who later messed around with a pyramid scheme — in which recruits were encouraged, among other things, to “strip naked and mock on another’s body fat.” (Perhaps related: Lifespring was later hit by allegations of “psychotic episodes and even deaths” during and after training events). In 2010, Thomas left a voicemail for Anita Hill, asking Hill to apologize for accusing her husband of sexual harassment two decades earlier. In a January New Yorker profile, Jane Mayer exposed Thomas’s very close and ethically brazen ties to her husband’s Supreme Court caseload. The court has ruled in favor of Thomas’s associates on several major cases involving gun rights, affirmative action, and abortion.
So here’s the theory: Ginni Thomas went rogue and leaked the draft to lock in the votes of the five justices who had already agreed to that version. This could stave off the possibility that Justices Neil Gorsuch or Bret Kavanaugh either a) negotiate with Alito to nix some of his more extreme language or b) defect for a more moderate alternative, possibly authored by Roberts — while distracting from the decision itself and getting the Roe news out earlier, so the public has moved on by the time the midterms roll around.
A justice would not leak an initial draft. It would be career suicide for a clerk or a member of court staff to do so, even with a justice’s covert blessing. Who might have access to the draft and the motive to do it? Mitch McConnell has already argued that the culprit should face criminal charges, but it’s not at all clear that leaking an opinion draft breaks the law. Could Ginni have taken a potentially legal risk to get what she wants? It would be funny, if nothing else. But I don’t see her Telegramming with Politico reporters. Neither does Jane Mayer, who we asked this morning because she has been following Ginni Thomas for decades:
I wish I could break some spectacular news on this but unfortunately like everyone else I'm in the dark about who Dark Robe is. I've seen the speculation about Ginni and just assume it's a referendum on everyone's favorite plot twist. I'd put it in the extremely unlikely category though. Among other things, the possibility that she'd interact clandestinely with anyone in the mainstream press is about zero.
That said, the most one can assume about the leaker is that it’s a batshit person with nothing to lose. What better describes Ginni Thomas?