Looking for the leaker: What was the ideological motivation for providing the Roe v. Wade reversal draft?

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It’s the biggest media mystery since Deep Throat was meeting Bob Woodward in a dimly lit parking garage.

Who is the Supreme Court leaker?

Everyone’s got a theory, and nobody knows who handed Politico’s Josh Gerstein the draft opinion overturning Roe v. Wade.

In the broader sweep of history, it doesn’t much matter. What’s more important, half a century later: that Daniel Ellsberg gave the Pentagon Papers to the New York Times and Washington Post, or that the documents revealed years of lies about the Vietnam War?

But given the deafening uproar over a 5-4 majority poised to throw out the landmark abortion law, the debate has zeroed in on the leaker’s ideological motivations.

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If, as I tend to believe, the source is a clerk to a liberal justice, then this was an attempt to derail the ruling by unleashing a massive wave of public pressure upon the Court. Since the draft was circulated on Feb. 10, it’s possible that John Roberts’ efforts to stop short of blowing up Roe were getting some traction, and the leaker wanted to show the conservatives what a firestorm they would face.

A police officer maintains a watch during a demonstration by victims of gun violence in front of the Supreme Court. (Joshua Roberts)

But there’s a countervailing theory that a law clerk to a conservative justice did the deed. The argument here is that by revealing to the world that Samuel Alito (the opinion’s author), Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Clarence Thomas had signed on, this leaker would freeze them into those positions. How would it look, after all, if a justice known to have been on the anti-Roe side was seen as backing off?

That’s harder for me to buy since the ruling was already moving in the direction fervently desired by conservatives, and why risk upsetting the apple cart?

But this is all media chatter. Where both sides agree is that the act of leaking a draft opinion is appalling and does tremendous damage to the high court’s credibility.

The Supreme Court is a cathedral of secrecy, but justices have to be able to exchange views, trade notes and cobble together a consensus in an atmosphere of confidentiality. How are they going to trust each other now, knowing that any comment or document could be leaked by someone with a political motivation? 

It’s hardly unusual for opponents to leak draft proposals from the White House or Congress in an effort to sink or modify them. I’ve written many such stories myself. But now SCOTUS, with declining approval ratings, looks like just another politicized branch of government.

By the way, any news organization would do what Politico did and publish the Alito draft once confirming it was authentic. It was news, period.

Supreme Court Chief Justice John Roberts is seen prior to President Biden giving his State of the Union address during a joint session of Congress at the U.S. Capitol on March 1, 2022, in Washington.  (Julia Nikhinson-Pool/Getty Images)

One interesting twist, as Chief Justice John Roberts orders the marshals to investigate the leak he calls a breach of trust, is that the move itself may not be illegal. Draft opinions aren’t classified, and there’s no law against sharing them with the press – though this would previously have been unthinkable. Unless theft or computer hacking was involved, the leaker, if caught, should be fired, but is unlikely to be prosecuted.

While the Democrats, led by Joe Biden and Kamala Harris, are casting the likely ruling as a terrible blow for women and an energizing issue for the midterms, they probably can’t do much about it. 

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First, as Jen Psaki told reporters, they don’t have the votes in the Senate to codify Roe.

Let’s say they somehow managed to get the votes to abolish the filibuster and passed a Roe law with 51 votes, including the vice president. There would be nothing stopping the Republicans, if they capture both houses, from banning Roe on the same basis. What’s more, the GOP could pass a nationwide ban on abortion, rather than the current draft ruling, which leaves it to the states. Having abortion legal in half the states is certainly preferable to the pro-choice side than having it outlawed everywhere.

US President Joe Biden (C) and First Lady Jill Biden (L) speaks with a priest as they leave St. Joseph on the Brandywine Catholic Church in Wilmington, Delaware, June 19, 2021. (Photo by OLIVIER DOULIERY/AFP via Getty Images)

Biden is now the de facto leader of the pro-choice forces, but as a Catholic whose church opposes abortion as sin, he has rarely mentioned the issue until now. He said in 1973 that Roe went too far, but he has evolved along with most of the Democratic Party.

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Now both sides are accusing the other of playing politics with Roe v. Wade. The draft opinion does seem at odds with the assurances of several Republican appointees that the precedent should be highly respected as settled law. But for those charging that a bunch of unelected lawyers are imposing their will on the people, couldn’t the same be said for the liberal Warren Burger Court that adopted Roe in the first place?

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Whether or not the leaker is discovered, this debate, with so much passion on both sides, is just ramping up for the two months before we get the final ruling.