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SCOTUS Leak Recalls Snowden and Toto

May 6th, 2022 by dk

If I could ask only one person about this week’s bombshell revelation from the United States Supreme Court, it would be Edward Snowden. Snowden sacrificed his career and risked his life to expose the inner workings of a government initiative because he believed what he saw was wrong and fundamentally unAmerican. Here we are again.

Snowden revealed how extremely interested government operatives had become of everyday Americans, surveilling them incessantly. We cannot yet know the motives of the person who leaked Alito’s 92-page draft opinion, but chances are good that his utter disregard for everyday Americans played a part in their decision to leak the document.

Chief Justice John Roberts wasted no time acknowledging the authenticity of the document, but warned that the court’s processes will not be altered by this early revelation. Except it already has.

Roberts has ordered the court’s marshal to investigate the leak and identify its culprit. Everyone with the slightest connection to the opinion-writing process will be scrutinized. A pall of suspicion will hang in the air until the leaker is identified. Protests outside the court’s ceremonial front steps began immediately and are sure to continue.

Roberts also cautioned that the draft, which has been circulating between the justices for two months, may not resemble the final opinion. What is published in late June will look different.

Justice Samuel Alito’s final version will have softer edges to gain more consensus. The stark language of his early draft is instructive nevertheless. An early draft is often more revealing than a final version that has been revised to satisfy a committee of collaborators.

What emerges from this version is hubris, urgency and anger. These very human urges are usually scrubbed from a final draft.  Co-signers of the majority opinion will insist that such personal baggage be excised. But make no mistake — Alito’s broad assertions are the foundation that the arguments are built upon.

His anger is directly mostly against the court’s own deceased predecessors. Scholars will find this revelatory. Such disdain has always been reserved for opinions that limited freedoms. Alito is here doing the opposite. He claims the court 50 years ago had no business expanding citizens’ rights and freedoms.

America’s vision of its own future has always been expansive. Even the end of Reconstruction didn’t blatantly and brashly reinstitute slavery. Never has an American justice expressed for a court majority such utter disregard for this expansive vision, the rule of law, societal norms, and individual wellbeing.

Did the tone of his draft prompt the leaker to abandon the privacy protocols and pledges that have protected the highest court throughout the modern era? It was Dorothy’s dog Toto who undid the Great and Powerful Oz.

What will the months ahead look like? Justice Harry Blackmun was given a security detail after his Roe v. Wade decision was released — a first for the court. His beloved Volkswagen beetle was deemed too conspicuous. His daughter reported hearing gunshots at her home. Assassinations were very recent history in 1973. It was a fearful time.

Justice Alito seems determined to take us back there.


Don Kahle ( writes a column each Friday and Sunday for The Register-Guard and archives past columns at

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