It’s the summer of 1972. The place is the state of Montana. Montanans have just voted in a referendum on a proposed new state constitution.
The results of the referendum were extremely close. There were—barely—more “yes” votes than “no” votes. But except in cases of revolution, any new state constitution must be adopted in accordance with the rules of the preexisting state constitution. And the preexisting Montana constitution (like the constitutions of some other states) says that winning more “yes” votes than “no” votes isn’t sufficient. Rather, the “yes” votes must amount to a majority of the people voting on all issues in the election, not just on the constitution.
Moreover, the voters had been told repeatedly: If you vote on other issues but abstain on the constitution, you are voting “no.”
Nevertheless, the governor proclaims the new charter adopted. Several citizens sue and, without a trial court hearing, the case goes directly to the state Supreme Court.
During their discussion in chambers, the five justices split 3–2. The majority decides the “yes” votes weren’t sufficient. The chief justice, who is on the majority, begins writing an opinion for the court.
But most prominent Montana politicians want the new constitution to pass. That’s because it would give them more power than they enjoyed under the existing document. For whatever reason, someone violates the secrecy of the court by leaking the results of the preliminary 3–2 vote. Unlike in the current case, the leak isn’t to the press but to one or more prominent Montana politicians.
They quickly identify one of the three justices in the majority as the weak link. They secretly apply pressure to him. Reportedly, for example, U.S. Sen. Lee Metcalf (D-Mont.) telephoned the swing justice personally and browbeat him. They persuade him to switch his vote. The minority becomes the majority and the new constitution becomes “law.”
But why? What’s the end game? To encourage Congress to encrust Roe v. Wade into federal statute? The congressional leadership doesn’t have the votes to do that, as any D.C. clerk would know. To encourage Congress to stack the court? Ditto. To mobilize the left’s political base in advance of the 2022 elections? Maybe. But that could have been accomplished by waiting until the final opinion comes out next month.
Another possibility is pure spite. However, a more likely motive is to recreate what happened in Montana in 1972: to expose a potential swing justice to political pressure. Of course, the clerk wouldn’t have to know about the Montana case to think of this possibility.
Apparently, he’s not in the majority, though, so he appointed Justice Samuel Alito to do the job. Alito has more seniority than anyone else in the majority except Justice Clarence Thomas, and Alito is a more centrist figure than Thomas.
If the preliminary vote was 5–4, then a switch by even one member of the court would prevent a clean reversal.
How to persuade one justice to switch? And which one is the target?
As the Montana case illustrates, political pressure can induce some judges to change their votes. Political pressure can take many forms: academic and media assaults on the court, raising concerns among its members about their “legitimacy,” threats of future congressional attacks on the court’s independence, and, of course, mob activity.
Based on the histories of Thomas, Alito, and Gorsuch, it’s highly doubtful that any Supreme Court clerk concluded that they would succumb to heavy-handed tactics. Justice Amy Coney Barrett has been on the bench for a shorter time, but her background, too, bespeaks a toughness that makes her an unlikely victim.
So my guess is that the target is Justice Brett Kavanaugh.
Note well: I’m not saying that Kavanaugh would, in fact, cave under pressure. I’m saying only that a leaker might think he might. Kavanaugh has deep roots inside the Beltway. He was born in Washington and has spent his professional life there. The brutal smears on his character during his confirmation hearings clearly had an emotional effect on him.
Of course, those smears would have an emotional effect on anyone. But he displayed it to a much greater extent than, for example, Thomas did when charged in a similar manner.
