Politics - News Analysis

Justice Thomas Whines About Leak of Draft Opinion — But Some are Pointing to Thomas as the Lead Suspect

When news of the leaked abortion opinion first broke, most of us who follow politics immediately assumed it was an angry liberal law clerk. The Right certainly believed it had to be. But now, as Bill Kristol says below in tweets (And Kristol is very dialed into official Washington), the consensus now is that the leak came from the Alito-Thomas camp.

It makes perfect sense.

When people asked themselves who stood to really gain from the leak there is no liberal motive that holds up. Anger wouldn’t do it. Many opinions have enraged law clerks and justices over the years, and yet none leaked.  Anger wouldn’t serve as sufficient motivation to kill one’s career and betray the trust. So if it wasn’t a liberal clerk…

What if a clerk believed he or she was “saving babies’ lives” by locking in the vote?

Clarence Thomas says ‘tremendously bad’ abortion draft leak changed the Supreme Court ‘forever’. Hmmmmm….

Many quickly noted that the opinion was draconian and unbelievably harsh, overruling Roe entirely. Chief Justice Roberts would not sign the opinion. People believed that the Chief Justice, knowing the explosion it would cause, was trying to convince Gorsuch or Kavanaugh – the two most likely to go with him, to simply uphold Mississippi’s law without overruling Roe. But if the opinion leaked with five signatures, and one of the five changed, it would look like one of the five caved to pressure from the press and the left. That change would enrage the far right.

A tactical leak that would change the law of the land and “save babies” could easily be considered serious motivation to leak it.  The five were practically locked into overturning Roe rather than upholding Mississippi. It is still possible that a justice will change his vote (It won’t be Coney-Barrett) and join Roberts, but far less likely. If a “true believer” law clerk thought he or she had a holy mission to save lives…

That is one theory and it is not mutually exclusive from the other theory, as put by Bill Kristol:

But there is another that is at least as compelling. Ask yourself which Justice has been on the court the longest and seems most willing to violate norms? Which justice has a wife that could be arrested if she provided organization or financial support for January 6th? Which justice had been conveniently hospitalized when the news broke of his wife’s texts and, knowing that the committee was continuing its work, might want to distract the country? Which justice has a wife that might be willing to slip it to a source of a source? In short, which justice really gained by having the entire country focused on the opinion itself and away from him?

And now, Justice Thomas is the justice who is most out front, talking about the damage, below from Politico:

Friday about the publication of a draft opinion that would strike down Roe v. Wade. “I do think that what happened at the court is tremendously bad,” Thomas declared during a discussion at a conference for Black conservatives in Dallas, per our colleague Josh Gerstein. “I wonder how long we’re going to have these institutions at the rate we’re undermining them and then I wonder when they’re gone or destabilized what we will have as a country and I don’t think the prospects are good if we continue to lose them.”

This talk came after Thomas described protesters at Justices’ homes as “bullying” and people “unable to accept the law,” which is priceless given that it describes his wife’s behavior after Trump’s loss and provides the motivation to leak the opinion.

And to the New York Times who described a talk Rehnquist once gave his clerks on their first day, as “It made one’s blood run cold. He said he’d do everything in his power to destroy your entire career.”

Bill Kristol wonders whether the leak of the abortion draft opinion came from someone in the Thomas or Alito camp.

But the Times notes that things are very different for justices:

“They don’t even have written ethics rules for the justices,” said Paul M. Smith, a law professor at Georgetown University who clerked for Justice Lewis F. Powell Jr. The leak, he said, and the focus on the lack of those standards after recent revelations about the political activities of Virginia Thomas, the wife of Justice Clarence Thomas, may put more pressure on the court to accept new restrictions on how it operates.

Many on Twitter believe they know the lead suspect and though no one can know, yet, obviously, the motivation is very solid:

There is no proof, yet. But I, for one, trust Chief Justice Roberts on this one investigation – the fact that he can’t get Thomas to recuse himself in certain cases is entirely different. The structure of the court is such that the Chief Marshall will report to Roberts and only Roberts about the leak. Roberts is the one whose name is on the court and history will remember the court under his tenure. It is Roberts who is most motivated to regain some honor and integrity, and thus run an investigation that can be trusted.


[email protected], @JasonMiciak, with Nicole Hickman

meet the author

Jason Miciak is a political writer, features writer, author, and attorney. He is originally from Canada but grew up in the Pacific Northwest. He now enjoys life as a single dad raising a ridiculously-loved young girl on the beaches of the Gulf Coast. He is very much the dreamy mystic, a day without learning is a day not lived. He is passionate about his flower pots and studies philosophical science, religion, and non-mathematical principles of theoretical physics. Dogs, pizza, and love are proof that God exists. "Above all else, love one another."


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