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I’ve heard many theories about the leaker in the past 36 hours but this one is … creative.

As some have suggested, it’s probably true that she’d be a suspect for Republicans if she were already a member of the Court. But she isn’t, as Grant Stinchfield acknowledges in the clip.

Rather, he wonders if Jackson’s clerks might already be at work inside the building. But why would they be? I’d be surprised if she’s hired any clerks yet, frankly, seeing how she was confirmed less than a month ago and likely won’t hear her first case as a justice until the fall.

Even if she has hired some, why would they have started work at the Court before she has? And why would they have access to a draft opinion in the Dobbs case, which of course Jackson hasn’t participated in?

And if for some strange reason they’ve already been hired and begun work, what do we make of the fact that the Alito draft that leaked to Politico was circulated on February 10, 2022, two weeks before Jackson was even nominated?

It’s possible that that draft was sitting in a drawer somewhere inside the Supreme Court building for months until Jackson’s dastardly clerks arrived on the scene a few weeks ago and discovered it. But Mike Lee, who clerked for Alito on the Supreme Court, told Fox News yesterday that drafts tend not to exist for long:

Presumably whoever leaked the February 10 version to Politico was on staff somewhere inside the building on that date and made a surreptitious photocopy before the “burn bag” protocol was followed. Which means it couldn’t have been Jackson’s SCOTUS clerks. Assuming that any such clerks exist yet.

If Stinchfield’s looking to explain how a shocking leak happened so soon after Jackson joined the bench, let me offer a theory: It was a coincidence of timing, the latest (albeit most explosive) evidence that relations between left and right inside the Court are doing about as well as they are outside of it. Shannon Bream flagged a few of SCOTUS’s headaches over the past six months on Monday night. There were the rumors of a dispute over masking on the bench between Sotomayor and Gorsuch. There was the premature leak of Stephen Breyer’s retirement. There were the revelations about Ginni Thomas lobbying Mark Meadows in 2020 to stop the steal. There was the controversy over the “shadow docket.” And underlying all of that was the destabilizing effect of the Court shifting from a 5-4 conservative majority where John Roberts is the ideological center of gravity to a 6-3 conservative majority where Brett Kavanaugh is.

The mood at the Court has been contentious for awhile now, notes CNN:

Within the court itself, recent sessions have been marked by finger-pointing and recriminations among justices. Liberals and conservatives have questioned each other’s motives in cases, and the six justices on the right have sometimes bitterly splintered. Roberts, who before October 2020 was in control as the justice at the ideological middle, has increasingly faced derision by fellow conservatives and been relegated to solo opinions.

The new breach of court secrecy may initially cause the justices to close ranks, as they often do in the face of external scrutiny and criticism. But it could more seriously undermine trust among the nine as a blame game begins.

The moment of truth on Roe may have turbo-charged that rancor, producing an unthinkable and unprecedented leak of a draft opinion. Either a conservative inside the Court did it as a cutthroat attempt to “freeze” the five justices in favor of overturning Roe before any of them could change their minds. Or a liberal did it in a nihilistic burst of anger at the coming decision: “If the court is going to be conservative, then let it have no mystique whatsoever” is how Ross Douthat summarizes the apparent logic of such a move.

The Court held out longer than most other American institutions but its legitimacy now seems in irreversible decline as well, consumed by the same tribal impulses that have incinerated the credibility of, well, pretty much everyone and everything. George Will:

The leaker accomplished nothing but another addition to the nation’s sense of fraying and another subtraction from the norms that preserve institutional functioning and dignity.

The leaker — probably full of passionate intensity, as the worst usually are — will leave a lingering stench in the building where he or she betrayed the trust of those who gave him or her access to Justice Samuel A. Alito Jr.’s draft opinion overturning Roe. The leaker probably got into a position to commit this infamous betrayal by swearing never to do such a thing. If justice is done, this person will never again practice law but will experience the law’s rigors.

It’s not clear that there are any legal “rigors” to which the leaker might be subjected, although theories are kicking around about how the matter might conceivably rise to the level of a federal crime. In any case, the leaker surely knew that being found out would mean losing any future career as a practicing lawyer. That reality was already priced into their decision. What they’re probably expecting is to be received as a resistance folk hero by the left (assuming the leaker is a leftist) and gifted with a teaching position somewhere. I wouldn’t bet against it.

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