If you like a good mystery, trying to identify the individual who gave Politico reporter Josh Gerstein an early draft of the Supreme Court decision that would overturn Roe v Wade is right up your alley.

Identifying the leaker of a big story is a national pastime in Washington. Think of the Watergate scandal and the manic search for the “Deep Throat” source that lasted more than 30 years.

Behind every bombshell story is a leaker. Reporters used to be very cautious of information that they acquired via a leak because the chances that the leaker had an agenda — usually political, sometimes personal — were virtually certain.

In the case of the Supreme Court leak on Roe, the task of identifying the leaker becomes a simple process of elimination. Only a small number of people actually had access to that draft opinion — nine justices and perhaps twice that many clerks — with a smaller number of employees who printed up the document.

If there was an agenda on the part of the leaker, it’s not obvious.

Volokh Conspiracy:

First, this leak may have come from the chambers of a liberal Justice. Under this theory, the leak was designed to create a backlash, and pressure a conservative Justice to defect from Alito’s opinion. But this theory makes no sense. If anything, this leak from a liberal chamber will entrench the five-member majority to avoid the appearance that the pressure campaign worked.

Second, this leak may have come from the chambers of a conservative Justice. Under this theory, the leak was designed to prevent a conservative Justice from defecting from Alito’s opinion. But this theory also makes no sense. If anything, this leak from a conservative chamber would infuriate a swing Justice, and push them out.

The one thing about positing a leak from Justices Sonia Sotomayor or Stephen Breyer that makes it possible despite the downside is that the radical justices aren’t governed by politics. They are imbued with a mission that allows them to throw out precedent and blow up tradition in order to light the fires of revolution.

Nevertheless, it probably wasn’t a justice or a clerk. If discovered, the justice would be impeached or the clerk fired and his career ruined.

Who then?

Josh Gerstein appeared to hint at a possible answer.


In 1979, ABC News Supreme Court correspondent Tim O’Brien went on air with reports predicting the outcome of two decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the court had breached protocol, and a Government Printing Office employee involved in setting type for the court’s rulings was transferred to a different division. The staffer denied leaking any information.

Perhaps in this case it’s not specifically an employee of the Government Printing Office, but think of how many individuals might lay their hands — and eyes — on a decision like this? And the fact that this is a draft opinion from February — probably one of the first drafts in a process that may have led to half a dozen drafts — means that the final decision might not look anything like this particular draft. It’s likely that there was less care taken to keeping this draft secret because it bears little resemblance to the final product.

Chief Justice John Roberts is going to come under enormous pressure from his colleagues to find out who leaked the draft.

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