NPR reporter says 'leading theory' on SCOTUS leak is conservative clerk

[kpete]

A clerk for a conservative justice is the “leading theory” amid intense speculation about who released a draft opinion authored by Justice Samuel Alito showing the court is set to overturn Roe v. Wade, according to legal affairs correspondent Nina Totenberg of NPR.

Totenberg said on ABC’s “This Week” that the prevailing theory is that a conservative clerk released the decision in an attempt to lock in the five justices who voted to support overturning Roe as Chief Justice John Roberts reportedly attempts to pull his colleagues toward a more moderate position.

“That has never, ever occurred before,” Totenberg said of the leak. “That could only, in all likelihood, have come from a justice — that I think is less likely — or perhaps one of the clerks.”

“The only one that makes sense is it came from somebody who was afraid that this majority might not hold,” she added.

https://thehill.com/policy/...

[CrispyQ]

1. I'm still betting it's Ginni.

At any rate, if it is a conservative who leaked, we'll never find out for sure, but if it's a lib who leaked, that info will be released.

[Wednesdays]

3. Released!?

Hell, if it was a liberal it will become a scandal of epic proportions, what with the M$M being what it is!

[krawhitham]

21. THIS, 1000%

Once a traitor always a traitor, she tried to overthrow an election, you think she wouldn't release a draft opinion?

She released so he could bitch about not being bulling because they were about to lose votes to Roberts' 15 week plan

[bucolic_frolic]

2. Just following directions? /nt

[Lochloosa]

4. That makes sense.

[onenote]

5. I'm not convinced by the "lock in the conservatives" theory.

What difference would it make? Whether or not one or more of the conservatives is convinced by Roberts to pull back from overturning Roe, Alito will still issue his opinion and several justices will join it. What difference will it make that they may have initially voted to go further but then backed away? It happens all the time in the drafting of Supreme Court opinions.

To me, someone wanting to expose how radical the position is of those favoring overturning Roe seems like a more probable candidate for leaking it.

[Hoyt]

6. Yep. I don't buy the "lock in conservatives" theory either. Anyone favoring Alito's Middle Ages view

would likely keep their heads down, mouths shut, and hope it sails through to final version. Seems more likely someone shocked by the whole approach seems, assuming it's not just someone wanting the be then next Annonymous, Snowden, etc.

But, nowadays who knows what is going on or the rationale behind things.

[Ms. Toad]

17. A zealot who wanted to flat-out overturn Roe makes the most sense.

Roberts might have succeeded in pulling enough away to save the skeleton of Roe, hindering the zealot's ultimate goal.

You need to look no further than Thomas's statement that they will not be bullied into changing their opinions) to see that releasing the opinion firmed up the support for the most extreme position. Anyone moving to the far right (as opposed to the extreme fringe where they are now) will now need to defend that movement against allegations that they are caving to public pressure.

Under normal circumstances, we don't know the details of the most extreme positions, since they are typically moderated by the time the opinion is released. No one has to justify that softening of positions, since we never see the original (flaming right) drafts. Exposing the original draft before released makes it much harder to move to a more moderate position.

[onenote]

19. Except Alito isn't likely to moderate his posity

And the identity of those conservatives, if any, that decide not to join his opinion would be known so the leak shouldn’t matter to any justice that was thinking about not joining his opinion.

[Ms. Toad]

23. If Alito is at risk for defections to a more moderate position, had the brief not been leaked

One of three things might have happened:

(1) He would have maintained his position, Roberts might have succeeded in recruting defectors, and his opinion will become a flaming dissent (but meaningless as to precedent)

(2) He would have maintained his position, one mor more of his concurring judges would have written more moderate concurrences, in part, rendering anything they did not concur with meaningless as to precedent

(3) He would have moderated his opinion in order to prevent #1 or #2 happening.

Because the opinion has leaked, those justices who voted with him are less likely to defect or to write more moderate concurrences in order to avoid being seen as being bullied into changing their opinions. Because #1 and #2 are less likely, that also makes #3 less likely since there will be no need to moderate in order to hold alliance.

You seem to be missing that it is precisely because the identify of those in alliance with Alito's opinion is known for whom the leak makes it harder to back away (either to Join a Roberts majority opinion or to write a more moderate concurrence, rendering less meaningful some/much of what Alito says).

This isn't about justices who voted not to overturn Roe. This is about shaming those justices who initially voted with Alito into sticking with him - in the most rigid form of the opinion, without writing a concurrence in part, in order to avoid the appearance of being bullied out of it. People who are threatened/challenged/condemned tend to dig their heels in - making it far harder for Roberts to peel someone away, as he did with Obamacare.

[underpants]

7. If Totenberg reported it I believe it

She’s been reporting for too long to stick her neck out.

The unified distracting projection from the right was telling.

[Buckeyeblue]

8. Interesting...Republicans will still blame liberals

Because the truth no longer matters.

[nuxvomica]

9. The leak also serves to make the opinion appear more grounded

There's a lot of speculation about this opinion and what it's ramifications are but what is missing from the conversation are the dissents by Alito's peers. This is a very poorly researched and bone-headed piece of judicial writing, so badly thought out the author feels compelled to include a disclaimer that it doesn't vacate other rights despite exploding the right of privacy so fundamental to other rights. Now imagine how devastating the dissents are likely to be? They would probably pick apart the logic, reasoning and citations in this opinion mercilessly. But we don't get to see those dissents so Alito's opinion gets to have a one-sided conversation without any peer review, giving it a respectability it could not have under normal circumstances. I bet many people think the entire court is on-board. This is similar to Barr's "summarizing" the Mueller Report to have its conclusions skewed in the public's mindset. I think this is what's meant by "catapulting the propaganda."

[FM123]

10. Could be....

I guess they didn't want one of the conservative justices to pull a "John Roberts" at the last minute like he did with Obamacare.
https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.html

[Jirel]

11. I'd say this is the dumbest theory, but...

Look, it makes no sense. A conservaturd should realize that the minute that leak came out, the TEAliban would start acting like rabid apes, pounding their chests about every restriction under the sun (never mind denial of birth control - I’m waiting for the proclamations about targeting marriage rights next), and the backlash would be incredible including from members of their own party at some point.

But then, I have to allow for the reality that conservaturds would be wildly deluded and just think everyone would rejoice. You know, like meeting troops in Afghanistan and Iraq with flowers in the streets.

[Ms. Toad]

18. The leaker hopes the justices (other than the leaker) will now be afraid of backlash from the RIGHT

if they join Roberts (and the current minority) before the ultimate decision is released.

The far right justices are now on record as supporting Alito's opinion. If they now retreat from that, they know they will face a mob like the Jan 6 mob. This leak makes it far harder for Roberts to convince them to move to a more moderate opinion because that change will be on the record.

[LetMyPeopleVote]

12. How the future of Roe is testing Roberts's clout on Supreme Court

There have been no doubt other drafts. There is some speculation that a conservative released this draft to try to keep Roberts from peeling off a vote for a more moderate opinion

Link to tweet

https://www.washingtonpost.com/politics/2022/05/07/supreme-court-abortion-roe-roberts-alito/

The mere existence of the draft indicated that five justices had voted at least tentatively to reject the incremental approach of Roberts to restricting abortion rights. Instead, they would reverse Roe after nearly 50 years of guaranteeing a right to abortion that could not be outlawed by the states......

It is another signal that the 67-year-old Roberts, hailed by scholars just a few years ago as one of the most powerful chief justices in history, is not in control of the process as the court readies its most influential decision in decades.

There is also reason to believe Roberts has not given up. Many who know him well and have watched his maneuvering of the court through other issues are certain he is still preparing his own opinion in hopes he might draw at least one of the court’s newest conservatives to his side. Such an outcome might save the 1973 ruling on Roe and the subsequent affirming 1992 decision, Planned Parenthood v. Casey, while severely limiting their protections.....

Roberts seemed to get no takers for a compromise that would erase the clear rule that Roe and Casey share, which is that states may not forbid abortions before viability, the point at which a fetus would survive outside the womb, usually 22 to 24 weeks.

Most observers of the court believe Roberts is still promoting a decision that would remove the viability line but otherwise keep Roe and Casey intact. Both liberals and conservatives are skeptical it can be done.

Right now it appears that the leaks are from a conservative who wants to keep five votes for Alito's radical opinion

[intheflow]

13. Dear NPR: No one gives a shit who leaked the decision.

The only people who care are the ones who wanted to ambush us with this atrocity before they left on vacation for the summer. The leak is NOT the story here. Get it together, NPR.

[halfulglas]

14. If it was a conservative clerk or justice it wouldn't matter which one.

All the conservative clerks are mentored and backed financially from law school on by the Federalist Society. You don't get to be a clerk for the conservative justices unless you get their backing. It doesn't matter how smart they are as long as they back the Federalist antidemocratic and anti-Democrat policies. They even push judges who have never tried cases. They and their tentacles are fascist and don't believe in any amendment to the Constitution, including the Bill of Rights. Elitists to the core.

[Xoan]

15. Ginni in the study ...

with a copier.

[VarryOn]

16. Hope they get frog-marched out of the building...

At 10 AM on a weekday in front of everyone.

[moondust]

20. Plausible theories on both sides.

On both sides.

Q: Would Alito's Mosquitos circulate an early rough draft broadly or be more likely to protect it among themselves?

[gratuitous]

22. I'm partial to the leaker being a conservative

And with that in mind, the leaker's identity will be disclosed about five years after nobody cares, like the revelation that Deep Throat was Mark Felt. If it was a liberal, that person's name would already be out there on First Street with the pot of oil being brought to a rolling boil.