Recently, National Public Radio’s Legal Affairs Correspondent Nina Totenberg was widely criticized for a false story about Justice Neil Gorsuch allegedly refusing to wear a mask during oral arguments despite a threat to the health of his colleague Justice Sonia Sotomayor. She also suggested that Sotomayor had to watch the oral arguments virtually due to his conduct. Gorsuch and Sotomayor issued a joint statement that called Totenberg’s story “false.” Now, Totenberg has made another bombshell report that “the leading theory” is that it was a conservative law clerk who leaked the opinion. While most of us have discussed this as one of the possible scenarios, Totenberg reports that it is now the “leading theory” in the investigation. Totenberg’s reporting, however, did not suggest that she has any factual basis or evidence to make that claim. She simply says that it is “the only one that makes sense.” It may be the only “sensible” choice for some, but it is hardly the “most likely” theory based on the available evidence.
Totenberg said on ABC’s “This Week” that the “leading theory” is that a conservative did this but added that she did not believe they would ever find the culprit:
There were those kinds of leaks but never an entire draft of a majority opinion, that has never, ever occurred before. And it can only, in all likelihood, have come from a justice, that I think is less likely, perhaps one of the clerks and the leading theory is a conservative clerk who was afraid that one of the conservatives might be persuaded by Chief Justice Roberts to join a much more moderate opinion, and then there’s another theory that it was an outraged liberal clerk.
But I think the only one that makes sense is that it came from somebody who was afraid that this majority might not hold, that Chief Justice Roberts might persuade one of the conservatives to come over to him in a much more moderate opinion.
However, Totenberg then added that “it’s very unlikely” that they will ever find the culprit. Hmmmm. So Totenberg is reporting that the leading theory is that a conservative did this but that, in the end, there is not likely to be sufficient evidence to establish who did it.
Given her earlier report, it is notable that Totenberg does not accuse Gorsuch. She agrees that it is highly unlikely that a justice was the culprit.
So why is the “leading theory” a conservative clerk? Totenberg insists that this was likely an effort of a conservative to lock in the majority to prevent backsliding. Why is that more likely that a liberal clerk trying to induce backsliding or simply trigger a public backlash. The leak immediately resulted in calls to pass the pending legislation to codify Roe v. Wade as well as a massive fundraising campaign by Democrats. It is also viewed as improving the prospects for Democrats in the midterm elections. Those are other possible motivations.
The fact is that we do not know, but Totenberg is reporting that the “leading theory” is that the conservatives did it. Indeed, she is saying that a conservative culprit is “the only one that makes sense.” So it does not make sense that a liberal clerk could also be motivated to go public?
Notably, many on the left have lionized the leaker under the theory that it was a liberal clerk.
After her prior sensational report, critics accused Totenberg of a long bias against conservatives on and off the Court. For her part, Totenberg did not take kindly to many denouncing her report as false or failing short of journalistic standards. When the NPR Ombudsman Kelly McBride raised concerns over her reporting, Totenberg responded that McBride “can write any goddamn thing she wants, whether or not I think it’s true.” (Notably, the justices have appeared for oral argument since October without masks — with the exception of Sotomayor — but she has appeared for oral argument).
I also do not know the basis for reporting that it is “unlikely” that the culprit will be found. We do not know what evidence is available to investigators and Totenberg does not claim such knowledge. We cannot assume that this reckless act was not done in a reckless way.
I remain surprised that Chief Justice John Roberts did not immediately call in the FBI, which is the world’s leader on computer and forensic investigations. Unless the Court is confident that they can find the culprit, the reliance on the Court’s internal police is a curious decision. I understand that it is problematic for the Judicial Branch to allow an investigation by the Executive Branch into the Court’s internal deliberations. However, there are ample means to protect confidentiality and to limit the scope of such FBI scrutiny.
I do not believe that you can assume that it is “more likely” that the culprit is conservative or liberal. Both are possibilities and anyone willing to trash every ethical principle is hardly predictable on intent. I still find it moronic to think that the leak would influence these justices who are motivated by deep principles on both sides. The only guarantee from the leak was that it would cause a political upheaval.
What does not “make sense” is that anyone would simply declare, on the face of the limited known facts, that this is most likely a conservative clerk.