Prominent Republicans and right-wing media figures have spent the last week accusing clerks for the three Democratic-appointed Supreme Court justices for the unprecedented leak of a draft opinion overruling two landmark reproductive rights cases. But a legendary chronicler of the high court has suggested they’re barking up the wrong tree.
National Public Radio legal affairs correspondent Nina Totenberg, who has covered the court since the 1970s, said the most likely culprit is a clerk for one of the more conservative justices, motivated by a desire to keep one of the four justices who voted to join Justice Samuel Alito’s February draft opinion — Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — from defecting.
"The leading theory is a conservative clerk who was afraid that one of the conservatives might be persuaded by Chief Justice Roberts to join a much more moderate opinion," Ms Totenberg said during an appearance on the ABC News programme This Week.
Ms Totenberg’s suggestion was at odds with the messaging that has come from top Republicans in the days since Justice Alito’s draft, which would have the effect of letting states force women to carry pregnancies to term against their will, was leaked to Politico.
Senator Ted Cruz, a former clerk to the late chief justice William Rehnquist, said on Fox Business Network last week that the leak most likely came, in his estimation, from “some left-wing presumably law clerk” who wanted to bully one of the four justices into switching votes.
Asked on Friday if he had any information to support his claim, Mr Cruz replied he believed a liberal justice’s clerk leaked the draft because he is “not a moron”.
But Ms Totenberg said the “only” theory that “makes sense” is that the leak “came from somebody who was afraid this majority might not hold — that Chief Justice Roberts might persuade one of the conservatives to come over to him”.
Such a defection, which would scuttle Justice Alito’s sweeping reversal of a half-century’s worth of precedent, would be a nightmare for conservatives and religious activists who have pushed to restrict women’s ability to choose whether to carry a pregnancy to term since the court issued a 7-3 opinion allowing it in the 1973 case of Roe v Wade and upheld that 1973 opinion 19 years later in Planned Parenthood v Casey.
