Orin S. Kerr | 12.15.2023 6:16 PM

If I read the New York Times scoop about Dobbs correctly, there was never any internal uncertainty about what the Justices would do in the case. There were always enough votes to hear the case, and Alito's draft majority opinion picked up five votes at a record pace. A majority had signed on to Alito's draft several months before the leak.

Of course, readers will disagree on whether this is a good thing or a bad thing. To some, it will show how unwavering the majority was in their commitment to the right path. To others, it will show how zealous they were in their blind commitment to such a mistaken ruling. But however you come out on that, I think the timing should probably alter some of the assumptions sometimes made in discussions about Dobbs and the Dobbs leak.

Here's my thinking. The article presents the story from the perspective of those who tried to prevent the Dobbs majority. Since-retired Justice Breyer seems like a likely source, given the discussion of what was in his head at........

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