“The Only One That Makes Sense”: NPR’s Totenberg Claims The “Leading Theory” is that the Leaker is a Conservative Clerk

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.

155 thoughts on ““The Only One That Makes Sense”: NPR’s Totenberg Claims The “Leading Theory” is that the Leaker is a Conservative Clerk”

  1. This is a partisan hit. How did protestors know where to be and to protest on this literally withing and hour of the “leak”. There is organization of this and it is all virile pleft partisan hate. Bad law is bad law,,,,, all the gnashing of teeth and braying like a donkey is all orchestrated symbolism over substance. And the factual substance is Roe vs Wade was bad law and it will thus finally be kicked back to the states. Being there is no mention of abortion in the constitution there can be no right to be “enforced”. As such it must be kicked back to the states to deal with as their state governments so wish. That imbecilic gobs of leftists can not fathom how our republic works…and thus demand mob violence and the like to obtain their selfish desires. Facts don’t care about your feelings….. and feelings is all the left runs on.

    1. Has it occurred to you that the Justices have neighbors who know where they live, and some of those neighbors are pro-choice?

  2. Unless a liberal clerk is more than twice as likely to leak, Bayesian odds would favor a conservative source, given the 6-3 conservative justice count. Even at four times as likely, it’s only 2 to 1 favoring a liberal source. I suggest we shouldn’t be surprised either way.

    1. Statistical arguments such as these only work when the leak is presumably random.

      It is obviously not.

      There is ZERO doubt that the leaker had some objective, that objective is most likely partisan.

      I think this leak benefits the right more than the left, but that was not easily predictable.

      I would note that it is not a given that conservative justices have conservative clerks.

  3. Here are the facts as of now: An unknown person of unknown political persuasion leaked the draft for unknown reasons.

    Yet, as is de rigueur strategy nowadays, the Dems proactively seek to seize the narrative through messaging.

    First, it was the liberal law clerk playing the part of the “patriotic hero” and now it’s the conservative law clerk because it’s the “only theory that makes sense”. it’s kind of like the ongoing inflation narrative. First, it’s transitory, then it’s a rich person’s problem, then, no, actually, inflation is good and now it’s Putin’s price hike.

    In all these narratives, you will note the usual posology of hypocrisy, double speak, double think and cognitive dissonance that typically encompasses the liberal narrative. In all of these narratives, the facts, evidence and the substance of the matter are simply unimportant. It’s simply about whatever sticks and whatever advances the liberal ideological objective(s).

    The facts are that the liberals during the Trump years have been leaking with absolute impunity. In what is truly shocking precedent, there have been no consequences, and, in fact, it has often proven to be beneficial to the leakers–from GoFundMe profits to book deals to leakers and perpetrators taking lucrative positions in Democrat aligned law firms and educational institutions.

    One would hope that both sides could agree that whoever leaked the draft, no matter which side of the partisan aisle, should be subject to severe consequences for what is an unprecedented and serious breach of judicial ethics and integrity that has irreparably harmed one of our nation’s core institutions.

    This is not and will not be the case because that is like so yesterday. We are to eschew such antiquated and anachronistic notions, such as bipartisanship, and instead embrace the woke (eyes wide shut) “moral clarity” (in Orwellian terms, the amoral opacity) in which the liberal end is justified by any (and I do mean any) means.

    In the end, the Dems have staked out both positions. If it is a liberal then the Dem aligned media echo chamber will go into overdrive with the patriotic hero narrative, if it is a conservative, then the media will go into overdrive with the Republicans are a danger to our democracy narrative (taking a page from Alinsky) and if the leaker is never revealed then, obviously we should believe the “only theory that makes sense”.

    Heads I win, tails you lose.

    Welcome to IngSoc.

    1. M says: “Dems proactively seek to seize the narrative through messaging.” Uh, no. It’s ReTrumplicans who harp on the leak via messaging, while ignoring the BIG story: 1. all 5 who would reverse Roe LIED during their confirmation hearings about Roe being “egregiously wrong”, because if they told the truth, they wouldn’t get on the SCOTUS; their opinion reeks of partisan politics2. the 5 in favor of abolishing a Constitutional right are doing so on the flimsiest of excuses, and this ruling, if it stays the same, will open the door for states to ban: contraception, interracial marriage, marriage equality and sexual acts between consenting adults that some ultra right wingers find objectionable. Focusing on the leak, which is clearly due to the lack of security at the SCOTUS, is a red-herring. The opinion was due out next month anyway. The leak is truly no big deal.

      1. So Natacha, will Justice Thomas’ marriage be grandfathered?

      2. There is no “lie” involved in the Justice’s confirmations.

        A judge can NOT “decide” in advance of hearing a case. That is ideology, not law.

        Justices ONLY job is to evaluate and rule on a particular case in the light of the Constitution of the United States. Until such cases are presented, their legality can not be decided.

        Leftists want activists on the court who don’t follow the Constitution, but instead their ideological bent. That is wrong.

    2. Don’t pretend that Democrats are doing it more than conservatives.

      Sen. Ted Cruz, for example, insisted that it was an “angry, left-wing law clerk” (video: businessinsider.com/cruz-spars-reporters-roe-v-wade-abortion-draft-scotus-leak-2022-5) and when asked “Senator, why do you think you know this was a liberal clerk who leaked this? Do you have information that suggests that?,” he doesn’t have any and pretends that his belief is sufficient: “Because I’m not a moron. Because I live on planet Earth.” (video: https://twitter.com/thehill/status/1522648893376323586 ).

      Some on the right were even naming specific clerks they believe leaked it: https://twitter.com/willchamberlain/status/1521685968939630592

      “One would hope that both sides could agree that whoever leaked the draft, no matter which side of the partisan aisle, should be subject to severe consequences”

      If they committed a crime, they should be charged. If they didn’t commit a crime, then if the person is employed by the court but isn’t a Justice, they should be fired. If it was a Justice or family member of a Justice, the Justice should resign. If the person is a lawyer, they should be disbarred.

      “The facts are that the liberals during the Trump years have been leaking with absolute impunity. ”

      The fact is that the people who leaked in the Trump years were a mix of conservatives and liberals.

      1. As quoted per Will Chamberlain:

        So, to conclude:
        A currently-serving Supreme Court law clerk whose career has been almost solely focused on abortion.
        She wrote her law school note on abortion.
        She wrote op-eds about reproductive rights.
        She spent a year working on abortion for the ACLU.
        She clerked for a stridently pro-choice appellate judge.
        And it just so happens that her husband is a journalist, who shared bylines with Josh Gerstein at Politico, and it looks like they are still buds.

        I don’t know that Elizabeth Deutsch leaked the draft opinion. But I certainly think someone who has spent much of their academic and professional life fighting to expand the right to get an abortion could be desperate enough to do so.

  4. So, the most likely “theory” is that a conservative law clerk risked their career, after “investing” in an elite law school degree and clerking for a Supreme Court judge, to stop a conservative judge from caving to Roberts. Really?

    What conservative clerk would assign a zero probability to being discovered? And if discovered, would a conservative not know that such an act would be viewed as disgraceful by fellow conservative, potential employers. And try to make the case to a fellow conservative that one of the four conservative Justices would have caved, if not for your disgraceful act.

    I also think it is unlikely that a progressive law clerk would risk their career, after “investing” in an elite law school degree and clerking for a Supreme Court judge, in the hope that the chaos that would ensue would cause a conservative judge to cave.
    That said;
    1) What progressive clerk would assign a zero probability to being discovered?
    2) If discovered, would a progressive not know that such an act would be viewed as heroic by fellow progressive, potential
    3) Would it be hard to make the case to a fellow progressive that one of the four conservative Justices would not have
    changed their view, but not for your heroic act.
    4) If Roe is overturned, would a fellow progressive believe you were obligated to try?

    My preferred hypothesis is that it was leaked by a sitting Justice, possibly with the help of a clerk following instructions. Perhaps a Justice that is no longer interested in sitting on the Court for the rest of her life, only to watch a conservative majority dismantle many of the decisions she holds dear and without hope of adding to the progressive judicial legacy.

    Of course it could be a conservative clerk. Hunter Biden’s laptop could have been Russian disinformation and Trump could have been a Russian agent. The “leaker as likely a conservative clerk” has all the hallmarks of those other views. And you know that track record.

    (I have to ask: Which conservative Supreme Court justice is likely to be convinced by Roberts to change their vote, had the draft decision not been leaked?)


    By persisting and incessantly continuing to develop, the embryo, fetus and BABY speaks for himself and says, “My body, my choice,” – that he wants to live and he wants to be born.

    Ask the baby and he tells you, by persisting, that he chooses life.

    “Just the facts, ma’am.”

    – Sergeant Joe Friday

    The truth.

    The whole truth.

    And nothing but the truth.

    So help you God.

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