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Liberal Clerk The Likely SCOTUS Leaker, Top Harvard Prof Says
Demonstrators outside the U.S. Supreme Court in Washington, D.C., U.S., on Monday, May 2, 2022. The U.S. Supreme Court is poised to overturn the landmark Roe v. Wade decision protecting the constitutional right to abortion, according to a draft majority opinion circulated inside the court, Politico reporter. Photographer:
Ting Shen/Bloomberg via Getty Images

Oh, you haven’t heard?

Turns out a draft of a Supreme Court opinion that would overturn Roe v. Wade was leaked to Politico on Monday. In the 98-page majority opinion, Justice Samuel Alito says, “Roe was egregiously wrong from the start.”

“We hold that Roe and Casey must be overruled,” Alito writes, a move that would invalidate the landmark 1973 decision that declared abortion constitutional.

There are several theories about why the opinion was leaked. “I think it’s plainly an attempt by the Left to try and change the outcome in this case and corrupt the process, and the court must not allow that to happen,” Sen. Josh Hawley (R-MO) said on Fox News.

But the big question of the day is: Who leaked the opinion?

Harvard Law professor emeritus Alan Dershowitz on Monday proffered a theory.

“I have a theory, and it’s only a theory,” Dershowitz said on Fox News. “I think this was leaked by a liberal law clerk who was trying to change the outcome of the case, either by putting pressure on some of the justices to change their mind, or by getting Congress to pack the court even before June, which is very unlikely, or to get Congress to pass a national right-to-abortion law, which would apply to all the states, and that would have to come to the Supreme Court to see whether that could be upheld under the Commerce Clause.”

“But I think this is real, and … my theory is that it was leaked by somebody who wants to change the outcome,” the attorney said. “Look, I’ve been watching Supreme Court for 55 years. And this has all the hallmarks of reality and it does not have the hallmark of a decision that’s likely to be changed. Maybe Chief Justice Roberts will go with the minority, but I think they seem to have five votes at this point to overrule Roe vs. Wade.”

Dershowitz added: “I strongly oppose overruling Roe vs. Wade after 50 years, but I think it will be overruled.”

Hawley said this has never happened before. “This is an unprecedented breach of the court’s confidentiality, and it is plainly meant to corrupt the process within a court. It’s an assault on the court,” he said.

But the original Roe v. Wade opinion leaked out in dribs and drabs. “In 1973, both Roe v. Wade’s decision and some of its deliberations were leaked to Time magazine and The Washington Post, both of which published articles before the ruling was made public,” The Washington Post reported.

“Then-Chief Justice Warren Burger was ‘livid’ about the leak, and wrote to all justices demanding that the leaker be found,” the Post said. “He said that if nobody came forward he would demand lie detector tests for the court’s clerks.”

Joseph Curl has covered politics for 35 years, including 12 years as White House correspondent for a national newspaper. He was also the a.m. editor of the Drudge Report for four years. Send tips to [email protected] and follow him on Twitter @josephcurl.

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