Whodunit? Theories swirl over U.S. Supreme Court’s leaked abortion opinion

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It’s the great “whodunit?” gripping the U.S. Supreme Court: Who is behind the leak of the draft opinion overturning Roe v. Wade?

The high court confirmed on Tuesday that the document first published by Politico was authentic. U.S. Chief Justice John Roberts announced in a statement that the court will investigate the breach, calling it “a betrayal.”

In the meantime, denizens of social media lost no time theorizing who among a limited pool of suspects had the motive to make public a draft majority opinion by Justice Samuel Alito that would overturn the constitutional right to abortion nationwide.

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Was it a liberal clerk or a conservative one? One of the justices? Someone close to a justice, like, say, a spouse? A court employee? A hacker who accessed the court’s computer system?

And what about the motivation for the disclosure? Was it to firm up or weaken support for the ruling? Soften public reaction or stir it up?

As Duke Law School Professor Neil Siegel, who clerked for the late Justice Ruth Bader Ginsburg, said in an interview, “Most people are seeing it through an ideological lens. Liberals think a conservative did it, and conservatives think a liberal did it.”

Judicial Crisis Network President Carrie Severino, for example, tweeted https://twitter.com/JCNSeverino/status/1521542986764627970 that the leak “has all of the marks of a desperate attempt by the radical Left to corrupt the Court’s deliberation process to achieve its end — at any cost.”

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Perhaps the motivation is “to pressure the Court and push the legislation in Congress on a federal abortion law before the midterm elections,” tweeted https://twitter.com/JonathanTurley/status/1521302683633782791 George Washington University Law School Professor Jonathan Turley. He added that “it will also likely renew the call for court packing,” increasing the size of the court and allowing President Joe Biden to appoint additional liberal justices.

That sounds plausible. But then again, so does a theory advanced by Democratic strategist Greg Pinelo that a conservative justice or clerk “leaked the opinion in order to frame the ultimate decision as more moderate,” he tweeted https://twitter.com/gregpinelo/status/1521525575738925059?s=20&t=6f69u0sT7yVKM5S_aV4jhQ.

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Or possibly a clerk in the more centrist Roberts camp did it, believing that “exposing the radical harshness of the decision and resulting reaction would give the chief leverage to sand down the edges,” Pinelo wrote https://twitter.com/gregpinelo/status/1521530126571393026?s=20&t=9ltCmLaf2jdVJHeCI5hIXQ.

Yale Law School Professor Amy Kapczynski, who served as a law clerk to Justices Sandra Day O’Connor and Stephen G. Breyer, initially assumed a liberal clerk was behind the leak, she tweeted https://twitter.com/akapczynski/status/1521494553877962754, but on further reflection is now inclined to blame a conservative.

Kapczynski, who did not respond to a request for comment, noted that the draft opinion was circulated in February. “If a liberal was mad about it, why wait until April to send it to Politico?” she wrote https://twitter.com/akapczynski/status/1521494555593433088. “If you work inside the Court, you know that the most concrete impact of the leak is to lock in this opinion essentially as is.”

The final opinion is likely to be published in June.

At this point, the only thing clear is that the leak was an unprecedented breach of protocol, violating the court’s hallowed tradition of confidentiality during deliberations among the justices. (Reporting by Jenna Greene; additional reporting by Sara Merken; editing by Leigh Jones)

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