According to NPR’s legal affairs correspondent Nina Totenberg a clerk for a conservative justice is the “leading theory” in the case to find out who leaked the SCOTUS draft opinion last week overturning Roe v. Wade.
Totenberg said on ABC’s ‘This Week‘ that the belief is that a conservative clerk leaked the opinion to lock in the five conservative votes to overturn Roe and prevent any of the justices from joining Chief Justice John Roberts who is reportedly attempting to convince his colleagues to support a more moderate position that does not completely destroy Roe.
“The leading theory is that 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, and then there’s another theory that it was an outraged liberal clerk,” Totenberg said. “The only one that makes sense is it came from somebody who was afraid that this majority might not hold,” she added.
Politico published the leaked draft on Monday authored by conservative Justice Samuel Alito showing that the court is set to overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide.
Conservative Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined Alito in the majority.
Roberts and Kavanaugh have voted in tandem on nearly every case that comes before the Supreme Court. It is likely that the leak was done to put pressure on Kavanaugh to hold his position and not become the Republican-appointed Catholic justice on the court to uphold the right to an abortion.
Roberts and Kavanaugh are also the two conservative justices who are most likely to join their liberal counterparts.
Roberts called the leak a “betrayal of the confidences of the Court intended to undermine the integrity of our operations.” He has directed the Marshal of the Court to investigate the source of the leak.