A massive Politico scoop Monday revealed that the Supreme Court has initially voted to overturn Roe v. Wade — sparking widespread speculation about who was behind the unprecedented leak.
Abortion law in America is at stake, and someone is apparently trying to stack the deck.
THE UNUSUAL SUSPECTS
Politico’s Josh Gerstein and Alexander Ward wrote that they had received the draft majority opinion — which would allow states to outlaw abortion — from “a person familiar with the court’s proceedings.”
- The Twitter hive mind took it from there, generating three main theories as to the identity of the leaker.
1. A LIBERAL CLERK: Some commenters, like Washington Free Beacon reporter Aaron Sibarium, immediately suspected a clerk of one of the Supreme Court’s three liberal-leaning justices had violated the inner sanctum in hopes of rallying public resistance.
"No draft decision in the modern history of the court has been disclosed publicly while a case was still pending."
So a liberal clerk overturned centuries of constitutional tradition to put public pressure on court to uphold Roe.
They have to axe it now.https://t.co/B0USdloPQe
— Aaron Sibarium (@aaronsibarium) May 3, 2022
Bari Weiss wrote on Substack Tuesday: “The most obvious take here is that the Democrats were in for a bruising in the midterms and this was leaked by a liberal to galvanize Democrats. Galvanize how? Perhaps to get voters to turn out as if their lives depended on it. Perhaps to pass a law before the midterms legalizing abortion.”
2. A CONSERVATIVE CLERK: Other pundits speculated that an overeager “pro-life” clerk may have released the draft opinion to try to guarantee the support of the court’s six-justice conservative majority.
I clerked at the Supreme Court. Last night, I assumed a liberal clerk leaked the draft opinion overturning Roe. Now I think MUCH more likely it was leaked by a conservative fanatically committed to every word of Alito’s monstrous opinion. **🧵**
— Amy Kapczynski (@akapczynski) May 3, 2022
Amy Kapczynski, a Yale Law professor and former Supreme Court clerk, said in a series of tweets Tuesday, “Far and away most likely impact of the leaked draft is that it locks in 5 votes for this opinion, essentially without edits. Who would want that?”
3. THE CHIEF JUSTICE: Yet other Twitter sleuths fingered Chief Justice John Roberts as the likely leaker, suggesting he had hoped the resulting liberal backlash would convince a fellow conservative to pull back from voting to overturn Roe v. Wade.
The story that makes the most sense re the leak is actually Chief Justice Roberts, trying to illustrate to a swing justice what the backlash would be like. But it is also completely out of character for Roberts; burn the village to save the village isn't his style. So, no. 1/
— Sean T at RCP (@SeanTrende) May 3, 2022
Brian Beutler, the editor in chief of Crooked Media, joined Real RealClearPolitics analyst Sean Trende in advancing the theory.
- “Not the only possible read, but consistent with Roberts orchestrating the leak in a last-ditch effort to make the Alito 5 see that his way (very right-wing rulings, with some smokescreening to provide the court cover) is savvier,” Beutler explained.
Shortly after the Politico bombshell dropped, CNN reported that Roberts would not vote to completely reverse Roe v. Wade but only to chip away at the longstanding abortion rights precedent.
- On Tuesday, the Supreme Court confirmed the leaked draft opinion was authentic, though not final.
- “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way,” Roberts said.
- “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” he added. “I have directed the Marshal of the Court to launch an investigation into the source of the leak.”
Senate Minority Leader Mitch McConnell echoed Roberts in a statement Tuesday, saying: “This lawless action should be investigated and punished as fully as possible. The chief justice must get to the bottom of it, and the Department of Justice must pursue criminal charges if applicable.”
- McConnell also slammed Democratic leaders for failing to condemn the leak.
- “The disgraceful statements by President Biden, Speaker Pelosi, and Leader Schumer refuse to defend judicial independence and the rule of law and instead play into this toxic spectacle. Real leaders should defend the Court’s independence unconditionally.”