[pattisapu]

When I clerked for a judge (not on the Supreme Court), she sometimes asked me to write two draft opinions -- one where one side wins -- and another where the other side wins -- and she used those materials in drafting her ultimate opinion.

There are so many different things going on in how judges write. I hope that they can get some _sense_ of security again so that they feel the freedom to be as open-minded as possible in figuring out the cases before them.

[rgbrenner]

That part of their deliberations already occurred... the leak was after the majority of the justices voted to approve the draft. That's why the final opinion matched so closely to the leaked version.

[pattisapu]

Oh of course -- I just meant that I can envision a scenario where a judge is essentially writing out a thought-experiment as he or she is trying to figure out how to rule on a case -- and then that is leaked, etc.

Even if it's a late-stage draft that's leaked, that comes with its own host of problems.

Imagine a world where drafts are trotted out by lawyers seeking to argue their interpretation of an old opinion. "The Court originally was going to hold something like my opponent suggests, but that bit got deleted, your honor!"

That would be another level of the problem of what we might call "arguing the changelog," using pieces of floor debate transcripts in the legislative history of a statute.

Justice Scalia analogized that to "entering a crowded room at a cocktail party, and looking over the heads of the guests for your friends."

And that's a concern on top of the potential for a chilling effect on the judiciary.

[rayiner]

We have no idea what would’ve happened in a counter-factual scenario. The draft opinion is the first time the whole court sees the reasoning on paper. Even if the narrow holding doesn’t change, the reasoning used and the sweep of the rule articulated can and does change.

[pattisapu]

And there is value in that being the first time the whole Court sees it.

Cards on the table at one definite time.

How much the author had to sweat to get there, to the extent it may matter at all, should show up in the results--a ruling written with a measured, judicial temperament.

[Waterluvian]

I'm picturing a political cartoon where Lady Justice is blindfolded, but she's visibly sweating and nervous as she's aware of being completely crowded by people with magnifying glasses, smartphones on camera mode, etc.

[LiquidSky]

>I hope that they can get some _sense_ of security again so that they feel the freedom to be as open-minded as possible in figuring out the cases before them.

This presumes that the leaker wasn't one of the Justices themselves, when it almost certainly was.

[pattisapu]

Sorry if this is a dumb question -- but what would be the motive for a sitting justice to leak a draft?

To test what celebrations or outrage would happen in the streets, maybe?

If they are that concerned with public opinion -- which they shouldn't be, but say they are -- I would think that would incentivize even stronger efforts to maintain confidentiality and discretion.

(Maybe you didn't suggest that it was intentional, but an accident. Even then I might wonder why someone would let their guard down on this case. Maybe there was so much more work done on one particular case, people get physically tired, etc.)

[pseudalopex]

Judges don't want people to believe public opinion can change decisions. Leaking a draft discourages judges from changing their votes or negotiating other changes.