Alito's Op-Ed Outlet Is A Favorite For Leaks From The Supreme Court's Conservatives

When Justice Samuel Alito received questions from reporters at the nonprofit news site ProPublica about an Alaskan fishing trip the justice took and failed to disclose in 2008 that was paid for by billionaire hedge fund manager Paul Singer, he ran to the Wall Street Journal Opinion page to issue a “prebuttal.”

Alito’s op-ed was unusual. As ProPublica reporters Jesse Eisenger and Stephen Engelberg noted: It was “hard to follow for anyone outside ProPublica since it shot down allegations (notably the purported consumption of expensive wine) that had not yet been made.” It was also odd to see a newspaper open its pages to a government official for purposes of getting out ahead of another news outlet’s story.

What made Alito’s op-ed prebuttal unusual also made it conspicuous. Instead of deflecting stories of the court’s dysfunction and ethical woes, Alito’s choice of venue shined a light on the relationship between the conservative justices and the Journal’s Opinion section, which is famous for its close relationship with the business-friendly GOP establishment.

“Justice Alito could have issued this as a statement on the SCOTUS website,” Bill Grueskin, a former deputy managing editor at the Journal, told The New York Times in a piece about Alito’s op-ed. “But the fact that he chose The Journal — and that the editorial page was willing to serve as his loyal factotum — says a great deal about the relationship between the two parties.” (The news pages of the Journal, where Grueskin worked, are editorially separate from the editorial page.)

Over the past 10 years, the conservative opinion section has served as an outlet for internal leaks from the court aimed at preventing conservative justices from issuing more moderate or liberal decisions. In the wake of the still unsolved leak of Alito’s decision overturning Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, such close relationships hold possible clues for who and how the decision eventually made its way to Politico.

Supreme Court Justice Samuel Alito ran to the Wall Street Journal Opinion page to pre-but a report by ProPublica that he failed to disclose a trip paid by a billionaire with a case before the court.

Indeed, on April 26, 2022, the WSJ Opinion page intimated that Chief Justice John Roberts “may be trying to turn another Justice now,” to prevent the court from overturning Roe. This was one week before Politico posted the leaked Dobbs opinion on May 2, 2022.

“We hope he doesn’t succeed — for the good of the Court and the country,” the Journal’s editorial stated.

The Journal Opinion page had previously hosted similar well-sourced and -timed “speculation” before the court issued opinions about its decision not to overturn Obamacare the 2012 case of NFIB v. Sebelius,and in an LGBTQ civil rights case, Bostock v. Clayton County, in 2020.

On May 21, 2012, the Journal sought to sway Roberts himself by warning that “the left is making one last attempt to intimidate the Justices.”

“The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan ‘activist,’” the editorial stated.

The editorial ended with a warning: “We doubt the High Court will be intimidated by any of this, and the truth is that no Justice would be worthy to sit on the Court if he is.”

This editorial immediately preceded two other pieces in the National Review on May 24 and by conservative columnist George Will in The Washington Post on May 25 warning that Roberts may side with the liberals to uphold the Affordable Care Act.

As Josh Blackman, a conservative law professor and blogger at The Volokh Conspiracy, noted in his book “Unprecedented: The Constitutional Challenge to Obamacare,” the pieces from the Journal Opinion page, National Review and Will showed that “a right-wing bat signal went out, with a clear message: we need to tell the chief justice to grow a backbone.”

“I’ve been told by those who heard the leaks that this information [that Roberts may side with the liberals] was known as early as May,” Blackman wrote.

The same thing happened again in 2019 after the court heard arguments in Bostock. That case ultimately affirmed that the Civil Rights Act’s anti-discrimination provisions covered gay and transgender people. The big surprise in the case was that it was written by conservative Justice Neil Gorsuch.

But if you read the Journal Opinion page on Nov. 22, 2019, or National Review on Nov. 19, 2019, you would have had fair warning that Gorsuch was considering siding with the liberals. The Journal warned that Gorsuch shouldn’t “[wash] away” the benefits of the judicial theories of originalism and textualism “when politically convenient.”

That is three times that the Journal Opinion page attempted to warn off conservative justices from moving away from the ideological line in a very timely manner — enough, in journalism terms, to mark a clear trend. In each case, the Journal’s editorials appeared at the same time as other near-identical pieces in conservative outlets, or in the case of Dobbs, when it was fully leaked.

Does this mean that conservative justices leak inside information to the Journal Opinion page to try to influence internal deliberations? That is exactly what Joan Biskupic, the well-sourced Supreme Court reporter at CNN, said on Jeffrey Rosen’s podcast for the National Constitution Center on May 5.

“I know that there is a very close connection between certain justices on the court and the Wall Street Journal editorial page, and through some intermediaries too,” Biskupic said.

The Journal Opinion page “has been the beneficiary of personal leaks from various justices,” Biskupic added. “And they have taken advantage of that in writing their editorials.”

The Wall Street Journal Opinion page has warned multiple times that Supreme Court Chief Justice John Roberts may be wavering from the conservative line before opinions came out.

She specifically pointed to the editorial that raised the possibility that Roberts was seeking to turn another justice to save Roe v. Wade. For that editorial, Biskupic suggested that the Journal’s source was a conservative justice.

“This is fascinating inside baseball, but I heard you say that it might have been a justice who leaked to the Wall Street Journal that Chief Justice Roberts was trying to peel off Justice [Brett] Kavanaugh?” Rosen asked.

“Oh, yes,” Biskupic said. 

Alito’s decision to run to the Journal for cover makes this history even more conspicuous. And his prebuttal to the ProPublica story isn’t even the first time he’s sought a friendly hearing from the Journal Opinion page.

In April, Alito gave an exclusive interview to the editorial writer James Taranto and David Rivkin, Jr., a conservative lawyer who brought the first lawsuit that led to the 2012 NFIB Affordable Care Act case. It was here that Alito said he had a “pretty good idea who is responsible” for the Dobbs leak and expressed anger that anyone would claim it was a conservative who leaked.

“That’s infuriating to me,” Alito said. “Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”

Biskupic, however, reported in July 2022 that the leak served a very real purpose that helped the conservatives: It froze Alito’s decision in place and shut down Roberts’ efforts to turn one of the conservative justices to his side.

“Once the draft was published by Politico, conservatives pressed their colleagues to try to hasten release of the final decision, lest anything suddenly threaten their majority. Roberts’ persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play,” Biskupic wrote for CNN.

Alito’s protestations and prebuttals have only served to bring even more attention to bear on the court’s hard right turn, ethical maladies and general dysfunction. But they’ve also done well to expose how the conservative justices work through conservative media to influence the outcome of cases.

For his own sake, Alito should stop protesting so much. But, for the public’s sake, continue to go off, king.