They wanted to freeze the votes
Obviously, the leak could have come from either side for any number of reasons. But this leak from the Wall Street Journal last week is a hint that someone on the conservative side was worried that Roberts was on the verge of moving on of the Justices away from the Alito opinion.
Judging from the Dec. 1 oral argument in Dobbs, the three liberal Justices would bar the Mississippi law that bans abortion after 15 weeks as a violation of Roe and Casey. Justices Thomas, Neil Gorsuch and Samuel Alito are likely votes to sustain the law and overturn both precedents. Justices Kavanaugh and Barrett seemed, in their questioning, to side with the three conservatives.
But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an “undue burden” on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.
The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.
It seems that somebody was worried enough about this to whisper in the Wall St. Journal’s ear. Leaking the draft would be a Hail Mary to try to embarrass the wavering Justice[s] into sticking with the program.
It’s more plausible to me than a liberal thinking that any of those five right wingers would be moved to vote with the liberals because of the leak. That really doesn’t make any sense at all.