Roe—or R.E.T.?—Leak

It’s naïve to automatically believe that Supreme Court Justice Samuel Alito’s majority draft opinion on Dobbs v. Jackson Women’s Health Organization—the case that might potentially overturn Roe v. Wade—was nefariously leaked by an insider. While that might possibly be the case, modern economic theory offers a more plausible explanation for why the draft opinion was outed: that it may not have been a “leak” in the classic sense but was instead a carefully crafted maneuver to forestall possible civil unrest.

The day after Politico published Alito’s draft, Supreme Court Chief Justice John Roberts directed the Marshal of the Court to find the “source of the leak.” A month later, CNN reported that Court law clerks faced the prospect of affidavit signings and cell phone records checks. But my suspicion is that Politico’s insider will never be found—because this person isn’t meant to be found.

For an alternative rationale for the draft opinion’s early release, look to the Federal Reserve. For the past few decades, Federal Reserve policy has adhered almost religiously to Rational Expectations Theory (RET). Developed in the 20th Century by economists John Muth and Robert Lucas, RET’s fundamental concept holds that rational actors will adjust present behavior based on expectations of the future. For instance, using our current inflation woes, RET theorizes that a rational actor who forecasts higher future inflation will contemplate purchasing goods sooner to avoid later price hikes. (Not exactly mind-blowing stuff, is it?) Now, almost by default, the Federal Reserve incorporates RET in practically all its decisions and actions, ordinarily telegraphing likely future policy changes well in advance. The Fed’s intent is two-fold: to reduce the potential for economic shock from unanticipated Fed shifts, and to allow RET to work its way through the economy via rational actors.

For the Supreme Court and the Dobbs case, considering the substantial society-altering implications of an overturned Roe, decided by a mere five or six Americans out of a population of 332 million, would it not be prudent to divulge the likely ruling early in a bid to defuse potential civil disorder? After all, supposing there had been no early leak, if an overturned Roe came down more like a Hiroshima bomb in a Supreme Court drop, the rights-stripping shock to millions of Americans would not just be academic but life-altering. To think there wouldn’t be violent demonstrations and property destruction, akin to the George Floyd protests, would be short-sighted considering recent history. But with the leak, there’s been time for the potentially disaffected to adjust, to turn their personal rage into either political action or emotional resignation. So, considering the likely upheaval that would have resulted if the Supreme Court had kept to its supposedly sacrosanct secrecy, the release of Alito’s draft made perfect sense far beyond the solitary motivations of any insider.

In January 2023, Gail Curley, Marshal of the Supreme Court, who was tasked with investigating the leak, reported that it was “not possible to determine the identity of any individual who may have disclosed the document.”