Was Politico’s Supreme Court Leaker an Inside Man?

John Roberts
Photo by Chip Somodevilla/Getty Images
Eriq Gardner
May 9, 2022

Everyone is still talking about Politico’s earth-shaking scoop that the Supreme Court may be on the verge of overturning Roe v. Wade and any constitutional right to an abortion. Just how did Politico get its hands on Justice Samuel Alito’s draft opinion? A popular D.C. parlor game at the moment is guessing the identity of the leaker. The most popular theories point to one of the 37 law clerks currently serving the nine justices. But I’ve heard the reasoning—everything from the presence of staple holes indicating printouts to the evolving cultural attitudes of Millennials—and I’m not convinced. So let me just offer four reasons the “leak” might have come from outside the building.

1. This would be a career-ender for a law clerk. And potentially criminal theft for anyone else working at SCOTUS not authorized to access a draft opinion. Remember that law clerks aren’t typical 30-somethings. These are extraordinarily ambitious, mostly Ivy League-educated high-achievers. They know the rules backwards and forwards; they’ve been trained to maintain confidentiality; and perhaps most importantly, they’re on the cusp of an elite career in which they can use their legal studies to advance their political and social views. 

2. The strategic upside to leaking isn’t obvious. Conservatives think that a liberal leaked it to influence the outcome. Liberals believe a conservative might have done it to sway a colleague or reset expectations. These theories are certainly plausible, but well short of being self-evident. That means that whomever is taking the risk, there’s no clear-cut payoff. Take the speculation by NPR’s Nina Totenberg that a clerk for one of the conservative justices leaked the draft with the intention of ensuring a majority for overturning Roe. This theory posits 1) that the leaker feared Chief Justice John Roberts would pull a colleague towards his more moderate position, and 2) that this person believed leaking the draft would compel the conservative wing—not wanting to be perceived as bending to public pressure—to hold strong. Sure, this theory of gamesmanship is possible but it also ascribes quite a lot of psychological prowess on the part of that clerk in understanding how a superior would react to a leak. Such a gambit could easily backfire, especially if the source and motivation got out.