“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.

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

  1. Me finds the good Professor to be too civil in his condemnation of Nina Totenberg. Even Justice Sotomayor said that she was not being untruthful. One has to wonder how in the world a reporter could sit down and make something up out of whole cloth and then have the gall to distribute such information to the nation. Another question that must come to mind is how did the editors at NPR let her assertions pass. Is the hatred so deep at NPR that they will allow the condemnation of a conservative Justice to be published without any scrutiny. We should keep in mind that NPR is being funded with your tax dollars. Nina Totenberg is just another propagandist for the Democratic party and you pay her salary. Make no mistake. I am not calling for NPR to be banned from the airways I am just making sure that you know that NPR works for the government when the government is run by the Democrats and they work in resistance when Republicans are in charge. NPR is no fair arbiter of the truth. You should take this into account before you press the NPR button on your remote.


      Thinkthrough is the Blog Stooge’s flagship puppet. And his army of puppets is demanding that NPR be defunded.

      The truth is that most of NPR’s funding comes from local listeners. But The Stooge wants us to think Deep States funds NPR. Because that sounds more logical to QAnon wackos like The Stooge.

      1. Please cite the Constitution for any power of Congress to fund radio shows – antithetical, anti-American, communist enemy radio shows at that.

  2. This is more disinformation from the left. This woman is a sham. It isn’t likely a conservative because it does them no good. It is more likely a progressive, and it is quite interesting how silent the judges considered to be on the left have been. Frankly, the most likely culprit vis Sonia Sotomayor. If the leaker is never discovered, my suspicion is that it is likely a Justice, and a progressive one at that.

    My question is where is the Attorney General in reference to protests outsde the Justices’ homes, why is he doing nothing about that, and for a former Appellate Court judge he seems ill-informed, extremely partisan, and every bit the horrible little far-left puppet Joe Biden is.

    1. Who said he’s doing nothing?
      What evidence do you have that they’re actually breaking the law?

  3. Totenberg comment, kinda sounds like a conspiracy theory.

    If they discover it was in fact a liberal clerk, will the Ministry of Truth fine, jail, or just call out Totenberg as a spreader of disinformation?

  4. I don’t have a problem with Turley pointing out Totenberg’s bias and conclusions drawn that aren’t factual to support her views. I wonder if Turley knows he does the exact same thing? He tells us things that aren’t supported by anything but his belief. He tells us what has been debunked when it hasn’t, He declares what isn’t racist (hint: he has never found anything in recent history to be racist). Turley is as biased as Totenberg, he just has a base needing and wanting to believe everything he says.

  5. I very much accept Professor Turley’s at face value most times….and on rare occasions might differ when it is “politics” being discussed…..but I very much challenge his statement:

    “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.”.

    The statement at face value is fine…..the reality is the follow up question…..”Can we be assured the FBI shall not leak to the Media during its Investigation?”.

    I also question if the FBI has the ethical backbone anymore to attend to their investigations in an unbiased impartial manner and follow the evidence where it leads.

    When the President and DOJ offer patently biased positions re the Leak and mob violence mentality it provoked…..by refusing to protect the Justices homes despite clear Federal Law that mandates they have the power and the responsibility to do so so….why should the Judicial Branch trust the Executive Branch to perform its duties under Federal Law?

    Chief Justice Roberts should hire a credible investigations organization to assist the Marshal in her Investigation if she needs resources and expertise beyond that available to her within the Judicial Branch.

  6. The media isn’t principled anymore. These “journalists” are activists masquerading as journalists. And then they wonder why the right doesn’t trust them. Look at the shoddy reporting!

  7. Let me try to quell some of the information posted below about National Public Radio (NPR) funding. Less than 1% of operational budgeting comes directly from the Corporation for Public Broadcasting or other agencies or departments of the federal government. That being said leads one to the belief NPR is not a burden to the average citizen of the United States. That couldn’t be further from the truth.

    To explain, NPR is a 501 (c) (3) organization, making contributions to the national or local radio station affiliates tax deductible.

    To illustrate 37% of NPR’s revenue comes from corporate sponsorship and 32% comes from Core and other programming fees paid by affiliates. Additionally, contributions of cash and other financial assets contribute another 12%.

    At the affiliated radio station level revenues are from; Corporations 19%, individuals 38%, Federal, state and local governments 4%, Corporation for Public Broadcasting 8% (not sure how this is reconciled with the 1% mentioned above), and Colleges/Universities 10%.

    All the contributing revenues above have a correlative reductive relationship to collectable taxes at all levels of government in support of the Corporation for Public Broadcasting, NPR, and local NPR affiliated stations.

  8. Jonathan: Everyone one has a theory about the ID of the leaker. Now Nina Totenberg has advanced her own theory. As a close watcher of the SC for years she has a right to her opinion and why people are paying attention. And no doubt why you are attacking her. You claim Totenberg has no “factual basis or evidence to make that claim”, i.e., that it was a conservative clerk. Funny, without any facts or evidence you suggested in your earlier post that “[t]he assumption is that the individual wanted to pressure the court to reconsider its purported path, and to push Congress to pass pending legislation to codify Roe”. You then follow this with an unwarranted claim the Dems have been “continually expressing utter contempt for the court and its traditions,…”. Your claim against Totenberg appears to be another case of the pot calling the kettle black!

    What is lost here, particularly by you, is not the ID of the leaker but the substance of Alito’s draft opinion and his faulty reasoning. As mentioned in an earlier comment (5/7) Alito erroneously claims prohibiting abortion has a long “unbroken tradition in the law”. Not true. Up until the Civil War most states banned abortion only in the late stages of pregnancy. Abortions performed before fetal “quickening” were legal. In his 90 page draft opinion Alito cites the discredited legal theories of the 17th century British jurist Sir Matthew Hale who asserted husbands could not be held criminally liable for raping their wives. Among his ignoble decisions Hale sentenced 2 women to death after they were accused of “witchcraft”. Bizarrely, Alito says Hale was one of the “eminent common law authorities”, and cites him over a dozen times, to justify overturning Roe. Many legal scholars and historians say Alito’s reliance on Hale is astonishing.

    How far back does Alito want to go to eliminate women’s fundamental rights. Apparently, way, way, way back! Alito is not only a conservative but a reactionary. Maybe this is why you have studiously avoided actually discussing Alito’s opinion.–and it has nothing to do with it just being a “draft”.

  9. Legal ethics requires disbarment of the leaker(s). There are, however, layers of ethics. It does seem like the leak in this particular instance has utility and on one ethical level makes some sense — given the unique volatile nature of this issue, the rarity of this kind of overturn, and by a 5-4 vote to boot.
    The leak isn’t causing eruptions that wouldn’t have happened, perhaps 10-fold, if the decision had blind-sided people. You’ve got a buffer zone, a transition period — a time to cool down and think.

    That may not have been the intent of the leaker, but it strikes me that the leak does in fact accomplish this.

    If this were a politically savvy person, then the leak probably came from the offices of one of the five doing the overturn.

    But while people in Washington live politics 24-7, they are often some of the least politically savvy people you are going to find. Rather, they emote, more than the rest of the population. The percentage of neurosis per square foot in that town is sizably higher than most of the other big and small towns in our great nation.

    Actions in Washington frequently don’t make any sense. So Totenberg’s theory doesn’t mean much. Although frankly, I would find it a bit refreshing if it turned out correct.

  10. Totenberg has never been an objetive reporter, her stories are larded with leftist ideology

  11. What happen a few years ago when the talk was to stop funding NPR by the American Taxpayer. Not one vote was taken to stop this organization so its still around with people as old as it is running it. Who exactly is responsible for how our money is spent?

  12. Roberts did not call in the FBI because he understands that before the FBI can investigate, there must be a predicate crime. They can’t investigate in hopes of finding a crime; there must be an actual law violated to trigger their jurisdiction. From everything I’ve read so far, the leak was a breach of Court policy and ethics, but not a crime. The leaker, if identified, can be fired, but that’s it.

    1. It depends on how the leak occurred. For example, if someone hacked a computer to obtain the draft, that would be a crime.

    2. Like a certain Diary…..of course you talk BS when you suggest there has to be a Crime……they can also investigate matters of interest to the Government.

    3. Like there was a predicate crime when they investigated an innocent American individual (DJT) in hopes of finding a crime. That type of investigation stuuuups??

  13. Question ? What happen a few years ago that everyone was beating the drum to stop funding NPR from The American Taxpayers pocket. What happens to a good idea that is the talk of the Country then goes off the screen and the subject moves on to something else?
    Right now it’s our boarders and it’s illegal border crashers. Today it’s on abortion, tomorrow high gas prices. What next?

    1. What’s next you ask? Good question. I’m wondering when Pope Francis will ex-communicate Joseph Biden from the Catholic Church. Wouldn’t THAT be something?

      1. Pope Francis is an anti-pope totally aligned with the globalist WEF agenda for a new world order. Make no mistake, antipope Francis supports everything Biden is doing.

  14. So, it is not acceptable that 9 unelected justices make decisions on women’s healthcare. However, it was a worth a celebration when 9 unelected all-male justices delivered Roe v. Wade.

    1. Or, conversely, when solid public health common sense principles were finally able to penetrate the staid, overly male SCOTUS in 1973.


  15. My leading theory is that Totenberg is way beyond her shelf life as a reporter. She is predictably biased and completely corrupt now. It’s also evident that NPR has gone over-the-top progressive and radical. Their ‘journalism’ does not require balance, nuance or even fairness so Democrat partisans like Totenberg are unrestrained.

  16. Just ask, cui bono? As for why Roberts didn’t call in the FBI — are you serious? Oh, maybe because the FBI has such a great track record when it comes to exposing liberal crimes? Turley, it’s fine to have some faith in the system, but your faith borders on complete naivety.

  17. C’mon.

    Totenberg is providing cover.

    Apply Occam’s Razor. There is no reason for a conservative clerk to release this.

    1. Ian Michael Gumby: Totenberg, at this point, has shown herself not to have an iota of respect for the truth.

  18. I solved the NPR problem years ago. I simply do not listen to them as far as news or analysis is concerned. I read multiple sources and get them from the right and left. I generally read news since it filters out the rolling eyes, screaming, and lots of unneeded noise and you can get deeper discussion. It’s easier to see the the BS than it is to hear it. If there is a notable news story It’s easy to find local sources without the spin of the national media. NPR just is not on my reading or listening list, ever.

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