Efforts in the media to blame a conservative at the Supreme Court for leaking Justice Samuel Alito’s draft opinion revealing the likely overturning of Roe v. Wade are “misguided,” according to legal experts.
Several media personalities have claimed the leading theory for the leak of Justice Samuel Alito’s draft opinion was that a conservative clerk shared it with the media to cement the non-binding majority vote. Legal experts pointed to ways in which the leak has already benefited Democrats and argued that comments on who may have leaked the draft opinion were purely speculative.
“The most likely leaker was someone on the left—whether a clerk, staffer, or family member of someone at the Court—who wanted to create public protests and otherwise scare Justice Kavanaugh or Barrett away from joining Justice Alito’s majority,” Georgetown Law professor Ilya Shapiro told the Daily Caller News Foundation.
“It certainly could be someone on the right, with the intent to steel the spine of any wavering justices, but that’s less likely,” he said. “Regardless, at this point, we have nothing to go on and it’s all speculation.”
Mike Davis, former clerk for Justice Neil Gorsuch and president of the Article III Project, said the media’s portrayal of the leak as the likely work of a conservative was serving the left’s interests.
“We do not know exactly who leaked the Supreme Court draft Dobbs opinion, but the efforts by the media to portray the leaker as a conservative are misguided and only serve the interests of the left,” Davis told the DCNF. “Over the past decade, the far left has been shattering norms within our government and society, so I would not be surprised if the leaker was an aggrieved staffer who sought to sway a Justice’s opinion to preserve Roe v. Wade’s precedent.”
“This will have the opposite of that intended effect. It is very telling that Democrats are cheering on this leak and the naturally resulting illegal intimidation and obstruction campaign at the homes of Justices,” he said.
NPR reporter Nina Totenberg said the leaker was most likely a conservative on ABC’s “This Week” Sunday.
“The leading theory is a conservative clerk who was afraid that one of the conservatives might be persuaded by Chief Justice Roberts to join the much more moderate opinion,” she said. “And then there’s another theory that it was an outraged liberal clerk,” she said. “But I think the only one that makes sense is that it came from somebody who was afraid that this majority might not hold, that Chief Justice Roberts might persuade one of the conservatives to come over to him in a much more moderate opinion.”
MSNBC host Chris Hayes suggested May 3 that the leak may have come from a conservative and, like Totenberg, thought it may have been intended to solidify the majority vote.
Jonathan Turley, a law professor at George Washington University, emphasized the potential motives that may have driven a liberal to leak the draft opinion and said Totenberg’s statements were based on limited facts.
“Totenberg insists that this was likely an effort of a conservative to lock in the majority to prevent backsliding. Why is that more likely that a liberal clerk trying to induce backsliding or simply trigger a public backlash?” he wrote.
“The leak immediately resulted in calls to pass the pending legislation to codify Roe v. Wade as well as a massive fundraising campaign by Democrats. It is also viewed as improving the prospects for Democrats in the midterm elections,” Turley said. “What does not ‘make sense’ is that anyone would simply declare, on the face of the limited known facts, that this is most likely a conservative clerk.”
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