Yet Another SCOTUS Leak
Here's What's Happening for June 27th, 2024
On Wednesday, a draft opinion was momentarily leaked onto the court’ website, before it was taken down.
So let’s talk about the Supreme Court and its odd modern history of leaks.
EMTALA
EMTALA stands for the Emergency Medical Treatment and Labor Act, which Congress passed in 1986. The law prevents hospitals from refusing care based on a lack of insurance. It also means hospitals must stabilize a patient if their life is in danger1.
Following the fall of Roe, through Dobbs, the Biden administration laid out guidelines on how to comply with EMTALA and the Department of Justice promptly sued Idaho for making abortions illegal, even when a pregnancy puts the life of the pregnant person at risk but not immediately in danger.
It made its way up to the high court, and when the Supremes agreed to hear it (known as Moyle v United States2), they hit pause on a lower-court decision to allow EMTALA regulations to continue while it hears the case. Because of that, in Idaho, pregnancies that threatened the life of the pregnant person, even if that life wasn’t immediately in danger, were made illegal in the state.
On Wednesday, for a brief moment, a draft opinion (or the real thing, we don’t know!) was posted on the Supreme Court website, before quickly being taken down.
It appears to be an administrative error, but a big one.
(I’ll cover it more in the podcast when the opinion finally drops but, if what leaked is to be believed, the court has decided that EMTALA preempts Idaho’s abortion ban.)
But we living in a material world post-Dobbs ruling world and part of that means this leak didn’t happen in a vacuum, admin error or not.
Dobbs Leak
No, we still don’t know who leaked the Dobbs ruling a month before it finally came out3. There are arguments to be made on both sides, but to me, the most compelling argument is… Justice Alito already leaked once. Why not leak again? Plus, his name has the added bonus of sounding like “Aleako” and that’s probably where he got the idea.
The most distressing thing about the leak, for me, is the level of casualness that the court took the investigation and leak. The leak was unprecedented and the result of the search was basically a shrug emoji before admitting they may never know who leaked it4.
Following the leak, suggestions were made about how to prevent future leaks.
We don’t know if the court followed through on the suggestions.
We don’t even know if they asked the Justices themselves if they did the leak. Which seems like a silly suggestion, but may I reintroduce you to Rob Schenck?
Burwell v. Hobby Lobby Stores
In early June of 2014, Justice Alito had dinner with an Ohio couple that donated to Former Rev. Schenck’s anti-abortion group. A day later, one of the women at the dinner emailed the following to Schenck: “Rob, if you want some interesting news please call. No emails.” And that’s when he says he was told about the Hobby Lobby ruling.
After the Dobbs leak, Schenk felt like this story sounded familiar, and so he reached out to Chief Justice Roberts since that was who ordered the investigation into the Dobbs leak, to tell him about this Hobby Lobby leak. For “whatever” reason (lol yes. “whatever reason”…) Roberts never got back to Schenck.
It’s either important to note, or just an interesting coincidence, that Justice Alito wrote the opinions for both the Hobby Lobby and Dobbs rulings.
Leaks at the Supreme Court are not new5, but a Supreme Court Justice just casually telling a big dollar donor about an opinion they’ll be stoked about and then suffering no consequences? That’s new and also, hear me out - bad!
And here’s the thing - Hobby Lobbs, Dobbs, and Moyle… those are three leaked opinions (two maliciously, one just an accident) that all have to do with reproductive choice.
Again, Wednesday’s leak really probably is a mistake.
But with all eyes on a court where Justices are going off on private jets with billionaires who are almost certainly persuading them to vote how they like them to vote, and the wives are either texting Trump’s chief of staff to support insurrection or putting their weird flag collections up in support of insurrectionists… it sure seems like now, more than ever, there would be just a little bit more caution before casually posting an opinion early.
And if that opinion is real, that means it’s ready. Why not release it now?
Why is the Supreme Court holding onto a decision that takes the heat off Republicans? And when will they release the presidential immunity decision? Are they waiting to drop it until after the debate?
Is the Supreme Court taking the election and the way they can influence voters, into consideration as they decide cases?
Don’t forget - this is also a podcast :)
Head to kimmoffat.com/thenews for direct links to both an audio and video version of the podcast, as well as links to everything I discussed here and in the episode.
Also, I wrote a book! It has nothing to do with news at all!
“december.” Faced with the end of a loving 22-year relationship, a young couple replays the moments that brought them to where they are now. Leaving will break her fiancé’s heart. Staying will break her own.
It’s available on Amazon, or as an ebook on Amazon or Apple Books.
Most important, don’t forget…
I’m proud of you!
