What We Can Deduce From a Leaked PDF

From Matthew Butterick:

In 1979, Bob Wood­ward and Scott Armstrong published The Brethren, a chron­icle of the Supreme Court during the tumul­tuous and conse­quen­tial terms from 1969 to 1975. Including, of course, the delib­er­a­tions around Roe v. Wade. I’ve recom­mended the book before—it’s my favorite work of legal jour­nalism.

At the time, The Brethren was contro­ver­sial. Despite the Supreme Court’s long­standing policy of secrecy around internal delib­er­a­tions, it was apparent that sources within the court had spoken to Wood­ward and Armstrong off the record. After the death of Justice Potter Stewart in 1985, Wood­ward confirmed that Stewart had been one of his key sources.

Thus, the bad news for those who contend that the recent leak of a draft Supreme Court opinion is “unthink­able” or, in the words of Chief Justice John Roberts, a “singular and egre­gious breach”—the horse is long out of the barn. Indeed, with so many more ways to securely leak infor­ma­tion these days, the only surprise in recent years is that there haven’t been more.

Much as I enjoy Wood­ward’s writing, his sources are not neces­sarily well concealed. One just needs to ask: “which person in this story takes the fewest hits?” For instance, in Wood­ward’s earlier book about the Trump admin­is­tra­tion, Fear, this line of thinking led inex­orably to former White House economic adviser Gary Cohn.

Cohn publicly ques­tioned the accu­racy of the book. Tellingly, he didn’t specify any partic­ular fact it had gotten wrong. In general, when sources deny jour­nal­istic reporting, I trust the jour­nal­ists, because there are still serious legal conse­quences for news orga­ni­za­tions that publish false­hoods; mean­while, no conse­quences at all for sources who issue blanket denials.

(This dynamic isn’t limited to polit­ical reporting. In 2018, Bloomberg Busi­ness­week published a story called “The Big Hack” that was vigor­ously denied by Apple and Amazon. Based on these denials, certain tech blog­gers became convinced that the story was false. The fact that neither Apple nor Amazon sued Bloomberg for defama­tion—despite being extremely rich, finicky, and liti­gious—made nary a dent.)

To be fair, this exchange of favors is not unique to Wood­ward. Rather, it’s a long­standing feature—or bug, some might say—of Wash­ington polit­ical jour­nalism. Much of the oper­a­tion of govern­ment is committed to the public record. But much more is not. Thus, leaks become currency, traded constantly. Without them, there would be no national polit­ical news.

So when you hear the cater­wauling—“egad, the leakers!”—assume it refers to the leaks that the cater­wauler finds unflat­tering. Although disclosing actual clas­si­fied infor­ma­tion is a crime, much infor­ma­tion about the govern­ment doesn’t fall into that cate­gory. In partic­ular, it doesn’t appear that leaking a draft Supreme Court opinion breaks any law. So the hot-blooded idea that the leaker should be “pros­e­cuted” is misplaced.

Not every leak is published, however. Over time, one of the reci­p­rocal favors that Wash­ington jour­nal­ists have offered is to plug certain leaks rather than publi­cize them. For instance, during his first 10 years on the Supreme Court—including the time depicted in The Brethren—Justice William Rehn­quist became addicted to Placidyl, a powerful seda­tive. Never­the­less, this fact was not mentioned in Wood­ward’s book, nor much other jour­nalism of the time. As best I can tell, the Wash­ington Post didn’t explic­itly connect Rehn­quist to Placidyl until after he had completed a detox program in early 1982. (Current Chief Justice John Roberts clerked for Rehn­quist during the 1980–81 term.)

Bringing us to this week’s leak by Politico of a draft Supreme Court opinion in the case of Dobbs v. Jackson Women’s Health Orga­ni­za­tion. I don’t usually comment on current events. But the possi­bil­i­ties for typo­graphic foren­sics were too intriguing to ignore.

Consis­tent with the Wash­ington jour­nal­istic prin­ciple of leaks-for-favors, I infer that whoever leaked this draft must foresee a benefit from the leak—as usual, cui bono?

. . . .

So what can we tell from the docu­ment itself?

For thor­ough­ness, I ran the PDF through some meta­data checkers to see if there were any inter­esting tidbits left behind. There weren’t. Though I didn’t expect to find any, based on the appear­ance of the docu­ment.

How was it created? Let’s go in steps:

  • An orig­inal color PDF was created on a computer using the US Supreme Court’s usual type­set­ting soft­ware. (And what is that? Programmer Faiz Surani noticed (perhaps unin­ten­tional) refer­ences in the Supreme Court Style Guide to a tool called “Opin­ions 2003”, which he spec­u­lated is a custom version of Microsoft Word 2003 used by the clerks for drafting opin­ions. This sounds plau­sible. For the type­set­ting and layout, designer Dan Rhatigan noted that the Supreme Court once used (and likely still uses) an XML-based publishing system made by Miles 33, appar­ently called OASYS. I’ve seen theo­ries else­where that La­TeX is involved—this wouldn’t surprise me either, because to my eye, the line breaking in Supreme Court opin­ions resem­bles that produced by the La­TeX algo­rithm.)
  • It seems that the PDF was created on a modern computer and not with a different device because of the use of Arial in the upper right corner of the first page.
  • It seems that the PDF was created in color because the yellow high­light around “1st Draft” is a rectangle that perfectly fits the text. Thus, the box must’ve been present in the digital file, and not, say, drawn by hand with a high­lighting pen.
  • It seems the PDF was printed and stapled because of the pres­ence of staple holes on the top left corner of each page. The opinion is 98 pages, so that must’ve been a pretty big staple.
  • It seems that the printed PDF was unsta­pled and then rescanned. Why? The reso­lu­tion of the page itself is very coarse and uneven, which is a kind of typo­graphic degra­da­tion char­ac­ter­istic of sheet scan­ners. Further­more, the pages have been scanned at different angles, which indi­cates the use of a low-volume home-office device. A typical office scanner would have an auto­mated sheet feeder that would keep the sheets in a more uniform vertical orien­ta­tion.
  • The text of the PDF is search­able because OCR was run on the PDF after it was created. Perhaps by the leaker, but more likely by the recip­ient, Politico.

It’s possible that Politico received the printed docu­ment and made their own scan. If that were the case, however, I’d expect them to have better quality scan­ning equip­ment and produce a nicer PDF.

But Politico has a strong incen­tive to protect their source. By making their own scan from a paper orig­inal, they wouldn’t open them­selves up to the disclo­sures of confi­den­tial infor­ma­tion that have tripped up others. (That said, printed docu­ments are not neces­sarily free of meta­data, as Reality Winner found out the hard way.)

Is it possible the docu­ment was scanned twice—once by the leaker, once by the publisher? I don’t think so. If it had been, I’d expect to see more pecu­liar pixel-level arti­facts and distor­tions.

So what does the state of the PDF tell us about the iden­tity of the leaker?

  • I conclude it must be someone who only had access to a stapled, printed copy of the draft opinion. (If the person had access to the under­lying digital file, they wouldn’t have printed & stapled it just to unstaple it.)
  • As explained above, I don’t think the leaker was an oppo­nent of the opinion, because there would be no tactical value in doing so. More­over, if the objec­tive of the leak was indeed to recon­sol­i­date support, then the leak didn’t come from someone whose support is wobbling.
  • Further­more, notice also that the docu­ment is completely unmarked, so whoever owned this copy didn’t find anything to disagree with.
  • In sum—I’d suppose it’s a friend, spouse, or family member of a Supreme Court justice who has consis­tently opposed Roe v. Wade, acting with some­thing between autonomy and plau­sible deni­a­bility.

Link to the rest at Matthew Butterick

There are lots of enlargements of various parts of the original leaked document at the link.

14 thoughts on “What We Can Deduce From a Leaked PDF”

    • Well, I wouldn’t characterize the conclusions as ‘laughable’, but writing that the leaker was an opponent of Roe v Wade certainly seems an overreach. By suggesting that the leaker was “friend, spouse, or family member”, you seem to be pointing to Ginnie Thomas, a strong proponent of dumping R v W. I cannot agree.
      What seems more likely is a partisan clerk, particularly one that hopes to chip away a Justice to make this a 5-4, rather than a 6-3 decision. And, that would point to one of the more Progressive Justices.
      Not Kagan – she is a strong supporter of R v W, but seems to be a mild-mannered person, not given to intemperate statements, and generally having a decent relationship with the other Justices.
      But, yeah, Sotomayor, who is both rabidly partisan, and not shy about expressing her opinion on current events that are likely to hit the Court, or her clerks (perhaps looking to curry favor?) are the ones that I’d bet on.
      SOMETIMES, the long shot does win (see the latest Kentucky Derby results), but not often. Generally, victory goes to the favorite.

      • My first thought was Sotomayor.
        She has zero institutional decorum.
        Kagan I agree is properly protective of the institution.

        But you missed one suspect: the guy who is retiring under pressure from his own camp. 😀

        Accusing a republican nominee ignores that they (apparently) got what they wanted so why sabotage their own cause. As I said below, the main outcome of the outrzge wzr is to change the subject from inflation, migration, security and tbe otber admin fzils.

  1. I trust the jour­nal­ists, because there are still serious legal conse­quences for news orga­ni­za­tions that publish false­hoods

    Let’s pause for a moment to consider that statement.

  2. Butterick may be right that this leak is a difference of degree, not of kind, but going from talking to a journalist about what you did awhile ago to talking about what you are doing right now are two very different things, especially since the reaction has been to doxx the conservative justices and go protest outside their homes.

  3. I understand that I don’t understand much about American politics. The same could also be said of British politics, which allegedly as a native I should have some understanding of.

    To me, the arguments over the right to an abortion is about killing the unborn. It seems to mirror the arguments around the 2nd amendment and crazy killing sprees.

    With both I seem the same rationalizations; if only we could save a life; it would be worth it.

    Colour me a cynic, but it seems to me that all these chants of lives matter, social justice etc, etc, are just words spewed to proclaim outrage over things what upset one.

    For me, this all ultimately boils down to freedom. This includes freedom from others opinions that seek to limit freedoms. The downside is that one persons freedom is another persons moral outrage.

    • Abortion is the least part of the affair.

      In this case what is going on is a war between absolutist ideologues on both sides being stoked by a failing administration looking to change tbe subject prior to an election where their ideological missteps have exploded in their faces.

      Add to that the ongoing crisis of the tenth ammendment that has the states at constant war against the federal government over pretty much everything. In UK terms, think of Tony Blair’s devolution efforts giving regions more local governance power, but in reverse: the constitutional basis in the US is supposed to limit central government intrusion in the governance of the states but for decades there has been a creeping federalization of pretty much everything, local interests be darned, leaving the states to pay the bills and take the social strife and political hit. In recent times it is now politically useful for State Governors and Attorneys General to challenge and hamper the feds in court.

      Finally, to add to the “fun” a Supreme Court majority has reportedly concluded that the legal framework spawned by the fuzzy and legally dubious 1973 decision finding an *implied* right to privacy buried deep in the constitution needs to be overturned *right now* to force Congress to get off their rears and actually address the conditions under which abortion is to be allowed or, more likely, leave it to states and local mores.

      With 20-20 hindsight the case really should have been settled on tbe basis of state law, given tbe absence of a federal statute that was still being debated at the time. Short circuiting the debate only led to five decades of conflict by camps talking past each other instead of seeking common ground. But since politicians benefit more from an active problem than a settled one there has been no incentive to even try for consensus.

      (Part of tbe fallout of the finding of an *implied* right to privacy is that the US is the only western democracy without a formal codified right to privacy, leaving it to a patchwork war of regulations and loopholes that serve nobody except targetted advertising merchants. Another unsettled war.)

      50 years of legalistic fighting has left nobody willing to compromise.

      TL:DR — No clean hands and violence imminent.

      • Congress does not have the power to make laws over any topic they want. From what I’ve read of the opinion, it says that the Constitution is silent on the matter, and therefor, per the 10th amendment, any regulation of it is a matter for the states as it’s not an enumerated power of the Federal government

        • Congress *can* pass any law on any subject so long as it doesn’t run afowl of the constitution. Or it can be rationalized. (C.F.,OBAMACARE forcing citizens to buy a for-profit product.)
          Even then, they can modify the law to fit or arrange for an ammendment referendum.

          The Consitution is neither a recipe nor a meaningless instrument of oppression. Rather it is a framework hoping to keep americans from killing each other in job lots.

          Checks and balances apply to all three branches of tbe government.
          What many, especially in the media, neglect is tbat the checks and balances also include the states and the citizenry.

          The long predicted CRISIS OF THE ’20’s is here znd it has a namd:The War of tbe 10th amendment. It will either end with its full abrogation or the return of federalism. No middle ground now.


      • Well, sort of.
        The polling on this has been remarkably consistent for decades–about three-tenths of Americans want abortion to be legal in all circumstances, an eighth want it to be legal in most circumstances, about a third want it to be legal in a few circumstances, and a fifth want it to be illegal in all circumstances.

        Plenty of room for compromise there.

        • Except that neither the politicians nor the activists *want* compromise.
          They want absolute terms: unchecked abortion right up to birth on one extreme, total ban on the other. Absolutists.

          Everybody else is in the middle trying to stay out of the crossfire.

    • To me, the arguments over the right to an abortion is about killing the unborn.

      The specific legal issue here is whether the written US Constitution guarantees the right to abortion. The draft opinion said the Constitution is silent on the matter. (It was a draft, not a formal, issued, and binding opinion.) Therefore, it would fall to each state to decide for itself. Under the US system, this would mean there will be at least fifty individual laws, one enacted by each state that is the law within that state. No big deal. Each state has its own law on murder, too.

      Can the Constitution be changed to guarantee the right to abortion? Sure. To date, there have been 27 ratified amendments. Both houses of Congress must approve an amendment by a 2/3 vote, followed by ratification by the individual legislatures of 3/4 of the states. Then the Constitution includes the amendment and guarantees the right. There is another way to amend which I will not go into here.

      And all this happens within the larger social controversy over the right to abortion.

      • Exactly: two separate questions at stake, one legal, the other moral.

        The war arises out of the desire of two small but vocal groups determined to co-opt the power of the state to force their beliefs on everybody.

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