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May 27, 2022

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‘I Have No Evidence’: Everyone Has A Theory About The Supreme Court Leak

WASHINGTON ― Sen. Ted Cruz (R-Texas) has a theory about who leaked the Supreme Court’s bombshell draft opinion on abortion.

“It is very, very likely a law clerk for one of the three liberal justices,” Cruz said on his podcast this week, adding that he suspected Justice Sonia Sotomayor’s clerks in particular.

“She is the most partisan of the justices and so she’s the most likely to hire wild-eyed partisans as clerks,” he said.

Cruz is himself a former Supreme Court law clerk, so he knows something about how draft opinions are handled. But he added an important caveat to his theory.

“I have no evidence of that, I’m just making an inference,” Cruz said.

It was only the latest unfounded theory on the Supreme Court leak, which revealed this week that a majority of the Supreme Court’s justices had already voted to overturn Roe v. Wade, the 1973 precedent that legalized abortion nationwide. The court confirmed the authenticity of the draft but said it hasn’t been finalized.

Many GOP lawmakers, and also some liberal commentators, immediately assumed a liberal leaked the opinion to make the court look bad. A Newsmax host even suggested Ketanji Brown Jackson leaked the draft even though she hasn’t yet taken her seat on the court; others have floated the names of individual clerks as suspects.

“By every indication, this was yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law,” Senate Minority Leader Mitch McConnell (R-Ky.) said in a typical statement on Tuesday.

But the bombshell Politico story that revealed the leak actually offered no “indication” of the source’s partisan bent. Of course, it is certainly possible that a liberal law clerk leaked the opinion. It’s also possible that a conservative leaked it.

The theory that a conservative leaked the draft goes like this: After oral arguments in the underlying cases, a conservative majority of justices voted to overturn Roe, but someone in that group has gone wobbly since Justice Samuel Alito shared his draft opinion, and the leaker wants to ensure heavy criticism for any conservative justices who back out. As HuffPost reported this week, apparent leaks have resulted in right-wing pressure on the court before.

“I find that ludicrous,” Cruz told reporters this week.

Tom Goldstein, an appellate advocate who has argued dozens of cases before the Supreme Court, theorized Thursday that there are at least two leakers in the abortion case, describing both as bad for the court.

The first leak, Goldstein argued, would have come from a conservative source who told The Wall Street Journal that five justices had voted to overturn Roe, but that Chief Justice John Roberts was trying to pick off Justices Brett Kavanaugh and Amy Coney Barrett to join a milquetoast plurality opinion.

“He may be trying to turn another Justice now,” the Journal’s editorial board wrote in the April 26 editorial cited by Goldstein.

The second leaker, he theorized, is a liberal who sent the full opinion to Politico, perhaps feeling justified in doing so by the prior leak to The Wall Street Journal.

“That document was much more likely to rally liberals than conservatives,” Goldstein wrote, noting that the opinion is “a full-throated attack on abortion rights” that “does not yet present the critique of Roe in its most persuasive form.”

Yet another theory related to the abortion case emerged this week when Sen. Marsha Blackburn (R-Tenn.) warned that Democrats would somehow vault Jackson onto the court before her planned swearing-in date later this summer.

“They’re trying to pack the court,” Blackburn told The Daily Caller. “They’re trying to expand the court.”

It is hard to imagine Democrats packing the court when they can’t even agree among themselves on social policy, changing Senate rules, or legalizing abortion at the federal level.

Republicans said the leaker should be punished and that they should be thrown in prison if they lie to federal investigators in the course of a leak investigation.

“If they lie in the course of the investigation, I think they should be prosecuted and serve the maximum prison term possible,” said Cruz, who has not denied that he is the Zodiac Killer.