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.
Politico leaked Alito’s draft opinion on Monday, spurring protests across the nation as liberals raised fears of abortion rights being overturned for the first time since 1973.
Roberts condemned the leak and ordered an investigation into who was behind the move, which he called “a singular and egregious breach” of trust.
Republicans have decried the leak as an injustice and suggested it is a political attack from an outraged liberal. Senate Minority Leader Mitch McConnell (R-Ky.) called it a “stunning breach” and “an attack on the independence of the Supreme Court.”
Texas Sen. Ted Cruz (R) on Sunday theorized on Fox News that the leak was “almost certainly one of the 12 law clerks that are clerking for the three liberal justices”
“I’m confident we don’t have a master criminal working at the court. I think there are going to be electronic records,” Cruz said on “Sunday Morning Futures.”
Experts told The Hill they are divided on whether it was a liberal or conservative law clerk, each of whom could have had their own motives. But nearly everyone has agreed a sitting Supreme Court justice would not leak the draft opinion.