“That's Why I Am Scared to Speak Out”
Reflections on the SCOTUS Leak from an Anonymous Yale Law School Student Who Fears Retribution From the Federalist Society
A few weeks ago, I wrote a couple of newsletters about a controversial protest in March at Yale Law School during which the police were called.
For those pieces, I had spoken to Zack Austin—the head of Yale’s Federalist Society chapter, who were the hosts of the event—and to Kristen Waggoner, General Counsel for the conservative group ADF, who was one of the speakers. To tell the whole story, I wanted to speak to one or more of the protesters to get their point of view. However, some were hesitant to go on the record, and I wondered why.
But, today, in the wake of the leak of the SCOTUS opinion that overturns Roe v. Wade, one of the protesters sent me the following email and said I could run it as long as they remained anonymous. This person explained why they want to remain anonymous at the bottom.
The Supreme Court of the United States. [Allison Edge / Getty]
You’ll note that the Federalist Society, which was started at Yale roughly forty years ago, is mentioned several times. The five conservative judges on the Supreme Court who voted to overturn Roe v. Wade (Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett) are all Federalist Society members. (John Roberts, listed as a Federalist Society member in the ’97-’98 directory, refused in 2005 to comment on his membership.) And it was the Federalist Society who hosted the March event at Yale Law School that caused the alleged ruckus.
But the goals of the Federalist Society, per the words of my anonymous source, go way beyond the campus in New Haven. The words that follow are, I believe, far more unsettling and pertinent to all of us than a campus ruckus created by a bunch of angry students.
Read this for some frightening perspective:
I think the general sentiment is that the substance of the [leaked SCOTUS] opinion is more important than the leak itself. Some students are condemning the leak, others are just asking questions. Who leaked this, and what were the motives for leaking it now? Amy Kapczynski, a YLS prof who clerked for Justices Sandra Day O'Connor and Stephen G. Breyer, has a pretty good thread on Twitter that I think many students see as compelling. She mentions that, at first, she thought it must have been a liberal clerk but that theory makes little sense on second thought. The reasons being:
*Timing - the liberals on the Court saw this opinion in Feb. So why wait till April to leak it?
*Motives - leaking the opinion all but ensures that the 5-justice majority won't substantially change their opinion or reasoning. Although it's normal for votes to change and reasoning on opinions to change, SCOTUS is going to want to avoid any appearance of caving to political influence. So, the leak actually serves the opponents of Roe by locking those 5 into this decision/logic.
*Psychology - the most liberal SCOTUS clerks generally aren't activist types. They are enormously risk-averse and probably would not blow a career to leak this opinion in advance (esp considering the points made above re: motive and locking the 5 justices into this logic). I think many YLS students agree that, while the leak is not the main story, it is curious that this unprecedented departure from norms happened at all, and [it’s] worth asking whose interests the lea[k] actually serves. Some of us think that it is the conservatives who stand to benefit from the leak.
About the content: Nearly every student I've spoken with understands this decision as a political maneuver that throws out half a century of settled constitutional law. The opinion's reasoning makes it clear: same sex marriage, anti-sodomy laws, and interracial marriage are all fair game for attack (those cases relied on the same logic this draft opinion rejects outright).
I think most YLS students who have been paying attention were not surprised by the content of the decision. We have seen the Federalist Society's decades-long campaign to get us to this point. We have heard Federalist Society members and guests at private events, behind closed doors, talking about how Roe will be overturned this term. The Federalist Society has been very clear that overturning Roe is the starting point. They've confirmed that abortion is step one of a much larger plan to reshape American society by stacking the judiciary with ideologues who agree with their antidemocratic political ends. [Editor’s note: The Federalist Society says it “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”] The decision itself is very clear that Obergefell (same-sex marriage), Loving (interracial marriage), and Lawrence (laws criminalizing sex between consenting gay adults) are all up for grabs.
Many students are concerned that the substance of the leaked draft indicates that the Supreme Court has lost its perception of legitimacy. This is the kind of antidemocratic and dark-money maneuvering that has driven the Supreme Court further and further away from its duties of upholding the rule of law. This is very troubling, as the Supreme Court derives its power from its public perception of legitimacy. Many professors and students alike are worried about the destabilizing effect this decision will have on American democracy.
Also, in case you need a link to the story of why 100s of media stories came out about some dinky protest of like 100 students [Editor’s note: She’s referring to the event I wrote about a few weeks ago], here it is. https://www.mississippifreepress.org/20042/to-rule-history-with-god-the-christian-dominionist-war-on-abortion-part-i/
I know this source has a political slant, but all the sources can be independently checked. It's true: ADF, which comes to Yale Law School every four years, was a major player in overturning Roe. And they are banking on being able to devalue protests [and] frame protesters as shrill and immature, all while quietly remaking America into a theocracy.
That's why I am scared to speak out super publicly. I know that what I'm up against is a behemoth and they have more money than I could dream of.