Taking Bets On Who Leaked The Supreme Court Opinion

You want to obsess over the leak? FINE.

CasinoIn the classic children’s book, There’s A Monster At The End Of This Book (affiliate link), Grover continuously begs the reader not to turn the page and bring us ever closer to the terrifying prospect of staring the monster in the face. Spoiler alert for those of you who haven’t managed to read a book released in 1971, but the monster is Grover himself. Which he sees as a relief, as opposed to the Kafkaesque realization that being is by definition a monstrosity.

The point is, we’ve begged you all to stop focusing on the leak and start focusing on “the Supreme Court is really about to go on a rights gutting spree, huh?” Figuring out how we got this information is a frivolity at best and an opportunity for bad actors to hijack that energy as a diversion from the substantive issues at worst. Like Grover, I’m urging everyone to stop talking about the leak.

But, also like Grover, part of getting you to stop turning the page is tackling the issue head on. So here we go, let’s talk about this leak.

Ross Guberman of Legal Writing Pro conducted a quick poll with some interesting results.

Very interesting. It’s also an inquiry that has the benefit of not being *checks notes* completely f*cking racist. (credit to Lawprofblawg for that phrasing). But this is just what people are guessing… what would you be doing if you had money on the line?

The Field of Liberal Clerks (+145): A lot of this process requires getting inside the possible motivations. What would a liberal clerk have to gain from this leak? This draft is from February, meaning a hypothetical clerk has had a couple months to realize that the majority is completely comfortable with this becoming public at some point. Without being privy to conversations amongst the justices, why would they imagine anyone is on the fence? Still, the money is moving in the direction of clerks so the line has to lean there too, but I don’t think it’s all that likely because there’s not a ton to be gained and everything to lose.

Sponsored

The Field of Conservative Clerks (+155): Frankly this seems more likely than liberal clerks, because there are multiple rationales available. It could be someone who just showed up for FedSoc’s free pizza and got in over their head and now sees this as an opportunity to make amends. Or it could be a true wingnut looking to brag. Unlike the liberal clerks who wouldn’t have any reason to believe someone is on the fence, a conservative clerk might know their justice is struggling and decide the uproar over this leak might tilt the balance. Again, I’m not sold on the clerk theory but it’s the favorite.

Other Court Staff (+275): A tricky bet. On the one hand, staff have fewer “high-minded but ultimately B.S.” reasons to keep quiet. They aren’t out there waxing philosophic about the sanctity of a chambers. On the other hand, staff are less engaged in the back-and-forth deliberations and may not have the sort of access needed for this leak.

Specific Clerk Note (-50 From The Next 6 Justices In This List): As we go through the justices, go ahead and assume one of their clerks is just slightly more likely the source, acting on the same rationale as their boss but with a little less sense of accountability.

John Roberts (+400): This is a bargain bet. Hear me out. If Roberts is really opposed to overruling Roe and wants to get conservatives back on board for his “death of a thousand cuts” approach, he floats this and shows the rest of the majority just how bad the backlash gets. Roberts has the long-term vision to accept a short-term legitimacy hit to preserve the long-term prospects of the institution and he alone has the power to squelch any investigation. It’s not necessarily likely, but worth your money.

Samuel Alito (+450): Exactly the kind of sociopath who wants to watch the world burn. There’s an argument going around amongst the folks who think this is a liberal leak that it “backfired” because now it prevents conservative justices from defecting lest they seem to be bowing to public pressure. That’s exactly why Alito would have done it! Force a wavering Barrett or Gorsuch back to the fold.

Sponsored

Stephen Breyer (+500): Who has two thumbs and no f**cks left to give on this Court? That would be Breyer, who basically saw this opinion coming and declared “ok, I’m out.” The justice doesn’t usually betray a sense of frustration with colleagues, but Breyer was an assistant special prosecutor on the Watergate investigation so maybe he has a certain affinity for what leaking to journalists can accomplish.

Retired Justice Clerks (+550): I’ll admit I don’t know how active these clerks are in the present Court line up, but clerks for retired justices have had access in the past while also having fewer reasons to stay quiet. I dunno… worth considering taking a flyer on it.

Elena Kagan (+600): You know who does betray a sense of frustration with colleagues? Kagan. From her days on the other side of the Supreme Court bench she would have media contacts. She probably doesn’t think this would change anyone’s mind, but she might have reached a breaking point.

Sonia Sotomayor (+600): Same odds as Kagan for largely the same reasons. The reason this is less likely is the same reason there’s a GMU Law professor furiously backpedaling right now: Sotomayor knows the racists are all going to blame her, so, unfortunately, she has to stay above all hint of reproach at all times.

Clarence Thomas (+650): The most likely justice in the tank with Alito would have the same logic for spreading the story. But he’s also more likely to leave that decision to Alito, respecting the conventions of the Court. At least on this score — not so much on the judicial ethics score.

Ginni Thomas (+650): Ginni on the other hand is more than willing to burn things down… up to and including the legislative branch as it turns out. Would she have the exact lack of situational awareness to think that broadcasting to the world “hey, abortion rights are gone!” would be a good move for the Court? Oh my… let’s reconsider this line. I’m moving her to (+350).

Anonymous — or something like it (+700): A tipster raised this to me this morning and I like it. Why do we assume the Supreme Court is any more tech savvy than the rest of the legal profession? With high-profile opinions coming up, a hacktivist group could easily be at work trying to pierce the Supreme Court’s internal conversations. This option is getting written off way too easily.

Kavanaugh, Barrett, Gorsuch (+1000): These three have literally nothing to gain here. The leak outs them as on board with the opinion already and if they later switch, they look like they’re wishy-washy. The only people on the Court with no incentive to let this news get out early.

Kavanaugh, Barrett, Gorsuch Clerks (+350): At least one of these justices has a clerk who is sick of this.

David Souter (+1500): I dunno… he’s just quietly sitting there.

Ketanji Brown Jackson (+30000): This is just racist and dumb.

***

There. Hopefully, as you come to the end of this little experiment you leak obsessed people embrace the realization that Grover didn’t: You are, in fact, the monster here.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.