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.